Honble MADAN, J. – The petitioner, Smt. Gyan Gehlot, who is Ex-Assistant Secretary and last served as Vidhi Rachna Adhikari in Assembly Secretariat, Jaipur, has filed in this court writ petition No. 3426 of 1988 for seeking relief inter-alia to direct the respondent Nos. 1 and 2, i.e., the Speaker of the Rajasthan Legislative Assembly, Jaipur and Secretary to Government, Parliamentary Affairs Department, Rajasthan, Jaipur to promote the petitioner on the post of Deputy Secretary w.e.f. 7.9.1990, i.e., the date on which respondent No.3 Satish Chandra Rastogi was promoted on the said post. The petitioner has further prayed to this court to issue writ of certiorari or any other appropriate writ, order or direction to set aside the impugned orders, dated 12th March, 1988 and 15th July, 1988 whereby the respon- dent Nos. 3 and 4 who were immediate juniors to the petitioner, were given promotion by the said respondents on the post of Assistant Secretary, Legislative Assembly Secretariat, Jaipur. (2). Writ Petition No. 1021/82 has been filed by Satish Chandra Rastogi who is respondent No.3 in S.B. Civil Writ Petition No. 3426/88, seeking relief inter-alia against the respondents for issuance of appropriate writ, order or direction that the impugned orders, dated 4.8.76, 27.10.77, 12.2.82 and 27.4.82 may be quashed and set aside. The petitioner has further sought direction to declare Smt. Gyan Gehlot, respondent No.3 as an userpur of the office of Section Officer in the Assembly Secretariat and she be ordered to be ousted from the said post and for restraining respondents Nos. 1 and 2 from considering the candidature of respondent No.3 for promotion on the post of Asstt. Secretary of the Legislative Assembly. (3). Since the parties in both the writ petitions are same, question of law raised for consideration of this court is identical and the relief sought for by the petitioners is also identical, both the aforesaid writ petitions are being disposed of by this single common order. For the sake of convenience and ready reference I deem it appropriate to refer to the facts stated in writ petition No. 3426 of 1988 as it covers the questions at issue equally involved for consideration of this court in writ petition No. 1021/1982. (4). For the sake of convenience and ready reference I deem it appropriate to refer to the facts stated in writ petition No. 3426 of 1988 as it covers the questions at issue equally involved for consideration of this court in writ petition No. 1021/1982. (4). Petitioner was selected for appointment on the post of Translator in the Rajasthan Legislative Assembly Secretariat, Jaipur on the basis of competitive examination held by the respondents in the year 1976 in which nine candidates had appeared and the petitioner had topped in the said examination. In support of this contention the petitioner has placed on the record of this court true copy of the mark-sheet as well as appointment order. The petitioner held the post of Translator till 11.2.92 when she was promoted as Section Officer. The petitioner had served in the Assembly Secretariat since the year 1966 and at the time of appearing in the competitive examination for appointment on the post of Translator, petitioner was serviving as Upper Division Clerk in State Assembly at Jaipur. It has been contended in the writ petition that when the petitioner had appeared in the competitive examination, there was a single post of Translator in Legislative Assembly Secretariat, Jaipur and there was no independent channel of promotion for the said post. (5). Reliance has been placed on Rule 9 of the Rajasthan Legislative Assembly Secretariat (Recruitment and Conditions of Service) Rules, 1952 (hereinafter refe- rred to as `the Assembly Rules of 1952) which provides that wherever these Rules are silent, the Rules applicable to the corresponding appointments in the Rajasthan Secretariat Service Rules, 1954 (hereinafter referred to as ``the Secretariat Service Rules 1954) will apply. In this context it will also be pertinent to refer to Rule 11 of the Assembly Rules of 1952 which provides that the Speaker may from time to time, pass such orders as he may deem fit to remove any difficulty in the operation of these Rules. It has been contended on behalf of the petitioner that the post of Translator was an isolated post in the Rajasthan Legislative Assembly Secretariat and there was difficulty to seek guidance from the Secretariat Rules, 1954 because in the State Secretariat the post of a Translator has since been converted into a post of a `Vidhi Rachnakar which is governed by the Rajasthan Vidhi Rachna Service Rules, 1981 (for short `Rules of 1981). It has been further contended in the petition that while no such cadre could be formed for the post of Translator the Honble Speaker was kind enough to use the powers given under Rule 11 of the Assembly Rules of 1952 and passed an order dated 12.2.82 by which the petitioner was pro- moted to the post of Section Officer from the post of Translator on the basis of `Baijal Formula and on the recommendations of D.P.C. and thus the petitioner was also given promotion like other employees of the petitioners grade from different cadres in the Assembly Secretariat. (6). The petitioner was later on promoted to the post of Assistant Secretary vi- de Order, dated 6.12.83. Respondent No.3 Sateesh Chandra Rastogi was also promoted to the post of Assistant Secretary alongwith the petitioner. Subsequently respondent No.4 Sher Singh was also given promotion on the post of Assistant Secretary vide Order, dated 24.9.84. It will be pertinent to mention in this context that respondent Nos. 3 and 4 had filed two separate writ petitions bearing Nos. 1021/ 82 and 1056/82 respectively against promotion given to the petitioner from the post of Section Officer to the post of Assistant Secretary. This court while hearing the aforesaid two writ petitions passed an order on 3.12.83 in respect of Writ Petition No. 1021 of 1982 titled Sateesh Chandra Rastogi vs. The State of Rajasthan and Others vacating its earlier stay order dated 17.1.83 and allowed the department of Rajasthan Legislative Assembly (respondent No.1) to give promotions to the respective candidates who were due for the same in accordance with the Rules and it was under these circumstances that the petitioner and respondent Nos. 3 and 4 were promoted from the post of Section Officer to that of Assistant Secretary. Out of the said candidates who were promoted to the post of Assistant Secretary, the petitioner was senior most on the basis of length of her service as Translator which was more than that of other two candidates and the next promotional post on which the petitioner was due to be promoted was that of Deputy Secretary. (7). It has been further contended in the petition that for some unavoidable reasons the Rajasthan Legislative Assembly Secretariat Officers Association was divided into two associations and the then Secretary sided with one unrecognised and newly formed association of officers which was separate from the petitioners association. (7). It has been further contended in the petition that for some unavoidable reasons the Rajasthan Legislative Assembly Secretariat Officers Association was divided into two associations and the then Secretary sided with one unrecognised and newly formed association of officers which was separate from the petitioners association. (8). It has been further contended that the then Secretary of the Rajasthan Le- gislative Assembly was prejudicial towards the petitioner and started harassing the petitioner by not allotting any room to the petitioner notwithstanding the fact that the petitioner was in senior scale as Assistant Secretary which is second post in the Assembly Secretariat. It has been further contended by the petitioner that the then Secretary of the Assembly passed an order dated 12.3.88 whereby the order of pro- motion passed in favour of the petitioner on 12.2.82 under the provisions of Rule 11 of the Assembly Rules of 1952, was cancelled w.e.f. 12.2.82, as a result of which the promotions made on the basis of `Baijal Formula were nullified by the said orders. It has been contended in this regard that Assistant Secretary may get the next promotion on the post of Deputy Secretary on the basis of seniority in the cha- nnel of promotions, whereas there is no chance of such promotion being given to Vidhi Rachna Adhikari in respect of which the next promotional post is that of Deputy Secretary of the Assembly. It will be pertinent to refer to Rajasthan Vidhi Rachna Service Rules, 1981. Schedule 1 of the said Rules indicates that the post of Deputy Secretary Vidhi Rachna Sangthan is to be filled in 100% by promotion from the post of Vidhi Rachna Adhikari. Column 6 of Schedule 1 provides that five years length of service is essential pre- requisite for being considered as sufficient experience for a candidate to be considered for promotion to the post of Deputy Secretary. (9). It will be pertinent to refer to the order, dated 15.7.1988 by which respon- dent Nos. 3 & 4 were confirmed on the substantive post of Assistant Secretary. (9). It will be pertinent to refer to the order, dated 15.7.1988 by which respon- dent Nos. 3 & 4 were confirmed on the substantive post of Assistant Secretary. In absence of regular selection by the D.P.C., though the D.P.C. had already been constituted vide order dated 11.3.88 and its meeting was also held in May-June, 1988, but it had come to the notice of the petitioner that a query was raised in the meeting that one of its member had retired from service w.e.f. 1.5.88 and his ser- vices were extended by the Honble Speaker w.e.f. 30.4.88 and he was not eligible to sit in the Committee Meeting. The above order has already been challenged in this court by the State Assembly Officers Association (recognised) in D.B. C.W.P. No. 1358/1988. Since the D.P.C. did not consider it expedient, the meeting was postponed. Subsequent to the filing of the writ petition respondent No.3 who was junior to the petitioner as per Annexures 3 & 5 was appointed as Deputy Secretary of the State Assembly vide Order, dated 7.9.1990. Respondent No.4 was also promoted as Deputy Secretary in the year 1992. It has been contended by the petitioner that gross discrimination has been meeted out to the petitioner by the respondents since admittedly the petitioner who is senior to respondent Nos. 3 & 4 was denied the promotion on the post of Deputy Secretary and the malafide intentions of the respondents are apparent from this fact that the post of Assistant Secretary on which the petitioner was discharging her duties was converted into `Vidhi Rachna Adhikhari without any basis when no such post exists under the Rules and creation of the said post has been done basically with a view to deprive the petitioner the next promotion to the post of Deputy Secretary. The petitioner has assailed the impugned order, dated 12.3.88 Annexure 14 by which the petitioner was denied the promotion to the post of Deputy Secretary, while respondent Nos. 3 & 4 who are junior to the petitioner in length of service and seniority were promo- ted to the said post and also by which the post of Assistant Secretary on which the petitioner was functioning was converted into `Vidhi Rachna Adhikari retrospectively without any basis or Rule. (10). 3 & 4 who are junior to the petitioner in length of service and seniority were promo- ted to the said post and also by which the post of Assistant Secretary on which the petitioner was functioning was converted into `Vidhi Rachna Adhikari retrospectively without any basis or Rule. (10). During the course of hearing learned counsel for the petitioner has contended at the bar that the impugned order dated 12.3.88 (Annexure 14) has pre- judicially affected the petitioners career, as a result of which the candidates who were admittedly junior to the petitioner have been given promotion to the higher post, while the petitioner continued to stagnate on the post of Vidhi Rachna Adhikari for the continuous spell of 11 years till she attained the age of superannuation on 31.7.1994. It has been further contended by the learned counsel for the petitioner that the petitioner who has all along served the State Assembly in the cadre of Section Officer, Assistant Secretary and Vidhi Rachna Adhikhari and was due for promotion as Deputy Secretary, has been denied promotion on the said post contrary to the Rules of 1952 and has also been deprived the benefits of Baijal Formula which was introduced pursuant to the Rules of 1952. It has been further contended by the learned counsel at the bar that the respondents vide order, dated 16.9.95 had sought to recover illegally a sum of Rs. 50,404/- on the pretext that the benefit of Rule 26(a) of the Rajasthan Service Rules, 1951 was not given correctly and as such the State Government had suggested to withdraw the said benefits. Perusal of Rule 26(a) of R.S.R. reveals that the State Government has no power to withdraw the benefits once given and infact there exists no power or authority with the State Govt. under the aforesaid Rules to withdraw the benefits from an employee retrospectively. In this regard I am of the opinion that the petitioner was given promotion in a legal manner by the competent authority in accordance with the rules and in absence of any challenge to the promotions given earlier to the pe- titioner, no power vests with the State Government to affect recovery from the petitioner who has since already retired from service on reaching the age of superannuation w.e.f. 31.7.1994. It has been further contended by the learned counsel for the petitioner in this regard that the recovery was sought to be made from the petitioner on the pretext that since the petitioner had not completed five years of service as Varisht Vidhi Rachna Adhikari before her promotion on the post of Vidhi Rachna Adhikari who was not entitled for the same. If this stand of the respondents is allowed to be made effective, then no such recovery would be justified because the Rules of 1981 do not envisage or permit any such recovery to be made from an employee retrospectively, particularly when a promotion had already been given to an employee in accordance with the Rules. Thus, despite the fact that the petitioner who is governed by the Rules of 1981 fulfilled eligibility conditions on the basis of both seniority and length of service, should have been automatically considered for promotion on the post of Deputy Secretary but with a view to deprive promotion to petitioner on the said post, recovery of the above am- ount was sought to be affected by the respondents from the petitioner retrospectively contrary to the Rules. Learned counsel for the petitioner has further contended at the bar that the petitioner is governed by the Rules of 1952 under which Baijal Formula was formulated and the petitioner should have been given promotion on the post of Deputy Secretary w.e.f. the date when the immediate juniors of the petitioner, i.e., respondent Nos. 3 & 4 were promoted on the said post. It has been further contended by the learned counsel for the petitioner at the bar that there was absolutely no justification for the respondents to have denied the promotion to the petitioner particularly when no inquiry or any other proceedings were pending against the petitioner and the petitioner is further being denied her full pension while only provisional gratuity has been given to her. (11). In reply to the above contentions advanced by learned counsel for the petitioner, Shri Poddar, learned Deputy Government Advocate for the State has contended at the bar that the petitioner was no doubt, given promotion earlier as Section Officer vide order, dated 12.2.82 (Annexure 3) and subsequently as Assistant Secretary but by order, dated 12.3.88 the petitioner was assigned the post of Varisht Vidhi Rachna Adhikari which was the channel of promotion available to her. With regard to the query raised by the court as to whether any post of Varisth Vidhi Rachna Adhikari or that of Vidhi Rachna Adhikari was in existence under the Rules as applicable to the petitioner, learned counsel for the respondents have not been able to place any material before this court to clarify the position in this regard. Rather it has been made apparent to this court that the Rules are absolutely silent in respect of said post which obviously means and implies that the post of Vidhi Rachna Adhikari which carries the same pay scale equivalent to the post of Assis- tant Secretary in Rajasthan Legislative Assembly was purposely created by the respondents contrary to the rules with a view to deprive and defeat the genuine claim of the petitioner for being considered for promotion to the next promotional post of Deputy Secretary in the State Assembly. (12). It has been contended in the reply to the writ petition filed on behalf of respondent Nos. 1 & 2 that the nomeclature of the post of Translator in the State Secretariat Services had been changed to that of Vidhi Rachnakar in the year 1981 and subsequently a separate service known as Vidhi Rachna Service was constituted by the State Government under the Rajasthan Vidhi Rachna Service Rules, 1981 which were promulgated in order to recruit the candidates regularly appoin- ted for the said post. Learned counsel for the respondent has contended in this regard that the said rules became applicable for the post of Translator as per the provisions of Rule 9 of the Rajasthan Legislative Assembly (Recruitment and Conditions of Service) Rules, 1952 and that the Baijal Formula though directly not applicable to the petitioner, she was given promotion vide order dated 12.2.82 on the assumption that Baijal Formula was applicable. In this regard I am of the opinion that the respondents have taken a very mazing stand before this court that while on the one hand it has been contended that the Translator was not eligible for promotion to the post of Section Officer under Baijal Formula and that the said Baijal Formula was not directly applicable but the petitioner was given promotion on assumption of its applicability to the petitioner w.e.f. 12.2.1982, while on the other the respondents have conceded their lapse by contending in para 5 of the reply that the mistake had happened in the year 1982 and that the same was rectified without any prejudice to the rights of the petitioner in her own line of promotion. In this respect I am of the opinion that the respondents should not be permitted to blow hot and cold at the same time and it does not behave the respondents who are worthy members of the State Secretariat to take such contrary stand which does not stand the test of reason or judicial scrutiny before this Court. This practice deserves to be depricated by this Court since the same has resulted in denial of not only the promotional benefit which were legitimately due to the petitioner but also stoppage of her pension and other consequential benefits. In para 11 of their reply the respondents have contended that the petitioner does not have any right of confirmation on the post of Assistant Secretary and that she will be confirmed on the post of Vidhi Rachna Adhikari. In this regard, in my humble opinion the argument of the respondents does not stand to reason, particularly when if the petitioner has no right of confirmation on the post of Assistant Secretary, then how she could be confirmed by the respondents on equivalent post carrying the same pay-scale as that of Vidhi Rachna Adhikari which is not a promotional post and which was created by the respondents contrary to the rules which were not applicable to the staff of the State Secretariat as on the date when the petitioner was due to be considered for promotion to the post of Assistant Secretary earlier and subsequently to the post of Deputy Secretary when respondent Nos. 3 and 4 who were admittedly junior to the petitioner were promoted on the said post by superseding the petitioner. 3 and 4 who were admittedly junior to the petitioner were promoted on the said post by superseding the petitioner. I am thus of the opinion that the confirmation of respon- dent Nos. 3 & 4 on the post of Assistant Secretary and their subsequent promotion to the post of Deputy Secretary is contrary and illegal having not been done in accordance with the Rules. (13). I have heard learned counsel for the parties at length and have also perused the relevant documents placed on the record as well the impugned order referred to above. (14). The questions which have emerged for consideration of this court are:– `1. Whether an execute order can be passed retrospectively with a view to deprive the legitimate benefits which have already accrued in favour of an employee contrary to the rules? 2. Whether the benefits once given in the nature of promotion can be withdrawn retrospectively without affording any opportunity of hearing to the petitioner contrary to the rules? In this regard I am of the opinion that the promotion once given cannot be undone retrospectively and the benefits once given to an employee cannot be taken away without affording opportunity of hearing to the employee and the appointment of the petitioner having already been made on the basis of selection earlier as a Translator w.e.f. 4.8.76 (Annexure 2) and her subsequent promotion on the post of Section Officer w.e.f. 12.2.82 (Annexure 5) the respondents were not at all justified in appointing the petitioner on the post of Varisth Vidhi Rachna Adhikari which was done purposely by the respondents contrary to the Rules with a view to deprive the petitioner of the next promotional post of Assistant Secretary to which she was promoted then as Deputy Secretary as referred to above. I am further of the opinion that Baijal Formula was introduced by the State Government with a view to amelorate the service conditions of the ministerial staff and a policy was evolved with a view to provide certain promotional avenues in the service of the State including the State Secretariat employees. The very purpose of the said policy stands lost and defeated in view of the negative approach adopted by the respondents in dealing with the petitioners case. (15). The very purpose of the said policy stands lost and defeated in view of the negative approach adopted by the respondents in dealing with the petitioners case. (15). I am informed by the learned counsel for the petitioner that the petitioner has already been retired from service on attaining the age of superannuation w.e.f. 31.7.1994 and the exercise has thus become academic. Hence it will be therefore, appropriate that the petitioner should be given national promotion on the post of Deputy Secretary w.e.f. 7.9.1990, i.e., the date when respondent No. 3 who was immediately below the petitioner in order of seniority was given promotion on the said post. I am further of the opinion that the petitioner is entitled to pension, gratuity and all other consequential benefits and also difference of salary as admissible to the petitioner if she had been promoted from the post of Asstt. Secretary to the post of Deputy Secretary w.e.f. 7.9.1990 when her immediate junior, i.e., respondent No.3 was given promotion on the said post. (16). My observations are fortified from the judgment of the Apex Court in the matter of Sh. Govind Prasad vs. R.G. Prasad & Ors. (1), wherein the question which had arisen for consideration of the Apex Court was as to whether an executive order of the State Government of U.P. could be made operative to the disadvantage of the petitioner with retrospective effect. It was held by the Apex Court that the nature and import of memorandum, dated 7.1.1980 was a policy decision to be implemented in future and it cannot be made operative retrospectively with a view to deprive the Junior Engineers and Assistant Engineers working in the electrical and mechanical wings of the Public Works Department in the State of U.P. the benefits of service to which they were entitled under the Rules. It was further held by the Apex Court that it is a settled law that an executive order of the Government cannot be made operative with retrospective effect and the State of U.P. was accordingly directed to formulate conditions of service of the concerned branches of the State Public Works Department in clear and certain terms by statutory rules. In my hum- ble opinion the ratio of the aforesaid judgment of the Apex Court is fully attracted to the present case. (17). In my hum- ble opinion the ratio of the aforesaid judgment of the Apex Court is fully attracted to the present case. (17). In view of the above discussion, I find force in the contentions advanced by the learned counsel for the petitioner in S.B. Civil Writ Petition No. 3426/88 which is allowed with costs which I quantify at Rs. 2500/-. Respondent Nos. 1 & 2 are directed to give notional promotion to the petitioner on the post of Deputy Secretary, Rajasthan Legislative Assembly Secretariat, Jaipur w.e.f. 7.9.1990, i.e., when respondent No. 3 who was immediate junior to the petitioner, was given promotion on the said post from the post of Asstt. Secretary. Respondent Nos. 1 & 2 are further directed to fix the petitioner in the pay scale as admissible to the post of Deputy Secretary, Rajasthan Legislative Assembly Secretariat by treating the petitioner as having been notionally promoted on the said post w.e.f. 7.9.1990 by re-fixing the seniority of the petitioner above respondent Nos. 3 & 4. Respondent Nos. 1 & 2 are further directed to pay difference of salary as admissible to the petitioner if she had been promoted from the post of Assistant Secretary to the post of Deputy Secretary w.e.f. 7.9.1990 and also to release pension, gratuity and all other consequential benefits as admissible to the petitioner in accordance with the Rules. (18). S.B. Civil Writ Petition No. 1021/82 being devoid of merit deserves to be dismissed and is accordingly dismissed with no order as to costs.