JUDGMENT Hon’ble Devi Prasad Singh, J.—The petitioners who are working as Amin and Ahalmad in various district in State of U.P., have approached this Court under Art. 226 of the Constitution of India against the impugned order of transfer by which they have been transferred from one district to other district. 2. In brief, the submission of the petitioners’ counsel is that the post of Amin and Ahalmad is of district level cadre. Accordingly, the petitioners could not have been transferred to other district. Admittedly, the petitioners’ case is covered by Service Rules, namely U.P. Land Acquisition (Revenue Department) Ministerial Service Rules, 1993, in short ‘1993 Rules’. Attention of this Court has been invited to the Government Order dated 28.4.1992 which shows that the government has declined to create State Level Cadre post for Amins and Ahalmad. The petitioner has also relied upon the Government Order dated 12.7.1995 which shows that the post of Amin and Ahalmad shall be a post of district level cadre. Accordingly, the submission is that the impugned order of transfer has been passed in violation of the service rules and the petitioner cannot be transferred outside the district. 3. On the other hand, Mr. Jai Shanker Mishra, learned Standing Counsel while defending the impugned order states that the Government Order dated 29.4.1992 was issued prior to the notification of 1993 Rules. It has also been stated that the Government Order dated 12.12.1995, relied upon by the petitioners’ counsel mis-construed the rules and it has been issued without considering the effect of service rules. He has also invited attention of this Court to various provisions of 1993 Rules while advancing his arguments with a statement that the posts in question are State Cadre post. He further states that a combined seniority list dated 15.2.2008 of Ahalmad and Amin covered by 1993 Rules has been issued by the Director of the department. It shall be appropriate to consider the rules referred by the learned counsel for the parties. 4. Rule 2 of 1993 Rules states that the post of Ahalmad and Amin shall be Group-C post. Under Definition Clause, Rule 3(a) provides that the appointing authority shall be Collector of the district concerned. Service has been defined under Rule 3(f) as service under as U.P. Land Acquisition (Revenue Department) Ministerial Service. 5. 4. Rule 2 of 1993 Rules states that the post of Ahalmad and Amin shall be Group-C post. Under Definition Clause, Rule 3(a) provides that the appointing authority shall be Collector of the district concerned. Service has been defined under Rule 3(f) as service under as U.P. Land Acquisition (Revenue Department) Ministerial Service. 5. So far as the strength of cadre is concerned, under Rule 4(1), it has been provided that it shall be determined by the government from time to time. Under Sub Rule (2) of Rule 4, the strength of cadre has been given by bifurcating various posts, namely Reader-cum-Ahalmad, Head Clerk, Reader-cum-English Clerk, Senior Clerk, Accounts Clerk, Ahalmad and Junior Clerk. 6. Rule 14 of the Service Rules relates to determination of vacancies which provides that the appointing authority shall determine and notify to the Director, the number of vacancies to be filled during the course of the year as also the number of vacancies to be reserved for candidates belonging to the reserved category. For convenience, Rule 14 is reproduced as under : “14. Determination of vacancies.—(1) The appointing authority shall determine and notify to the Director, the number of vacancies to be filled during the course of the year as also the number of vacancies to be reserved for candidates belonging to the Scheduled Castes, Scheduled Tribes and other categories under Rule 6. (2) The Director shall notify to the Employment Exchange in accordance with the rules and orders for the time being in force, the number of vacancies to be filled during the course of the year as also the number of vacancies to be reserved for candidates belonging to Scheduled Castes, Scheduled Tribes and other categories under Rule 6.” 7. Rule 15 deals with procedure for recruitment by promotion. It provides that the selection shall be done through a Selection Committee constituted in accordance with the Subordinate Offices Ministerial Staff (Direct Recruitment) Rules, 1985. For convenience, Rule 15 is reproduced as under : “15. Procedure for direct recruitment.—(1) For the purpose of recruitment there shall be constituted a Selection Committee in accordance with the subordinate offices Ministerial Staff(Direct Recruitment) Rules, 1985, as amended from time to time. (2) The Selection Committee shall scrutinise the applications and require the eligible candidates to appear in a competitive examination and interview. Procedure for direct recruitment.—(1) For the purpose of recruitment there shall be constituted a Selection Committee in accordance with the subordinate offices Ministerial Staff(Direct Recruitment) Rules, 1985, as amended from time to time. (2) The Selection Committee shall scrutinise the applications and require the eligible candidates to appear in a competitive examination and interview. (3) After the marks obtained by the candidates in the written test have been tabulated, the Selection Committee shall having regard to the need for securing due representation of the candidates belonging to Scheduled Castes, Scheduled Tribes and other categories in accordance with Rule 6, call for interview such number of candidates as on the result of the written examination, have come up to the standard fixed by the committee in this respect. The marks awarded to each candidate in the interview shall be added to the marks obtained by him in the written test. (4) The Selection Committee shall prepare a list of candidates in order of merit as disclosed by aggregate of marks obtained by them in the written test and interview. If two or more candidates obtained equal marks, the candidate obtaining higher marks in the written test shall be placed higher. The number of the names in the list shall be larger (but not larger by more than 25 per cent) than the number of the vacancies. “ 8. It has been stated by the petitioners’ counsel that the provisions given in the Subordinate Offices Ministerial Staff (Director Recruitment) Rules, 1985, in short 1985 Rules, contains a procedure for filling up vacancies of the district cadre by the competent authority. Rule 5 of 1985 Rules deals with the strength of service. For convenience, it is reproduced as under : “5. Rule 5 of 1985 Rules deals with the strength of service. For convenience, it is reproduced as under : “5. Strength of Service.—The strength of ministerial staff in a particular Department/Office and of each category of posts herein shall be such as may be determined by Government from time to time : Provided that the appointing authority may leave unfilled or the Governor may hold in abeyance any post or class of posts without thereby entitling any person to compensation : Provided further the Government in the Administrative Department may, in consultation with the Personnel Department and Finance Department, create such permanent or temporary posts in any Department/Office from time to time as may be found necessary.” A plain reading of Rule 5 (supra) indicates that the strength of ministerial staff in a particular year shall be determined upon the vacancy available in the department/office with regard to each category of post as may be determined by the government. Meaning thereby the strength of service of the particular office in the present case of the district may be decided by the State Government while providing infrastructure. 9. Rule 6 of 1985 Rules deals with the source of recruitment and Rule 17 thereof relates to constitution of Selection Committee for the purpose of recruitment to any post. Under Rule 17, a Selection Committee should be constituted, headed by the appointing authority and under Rule 18, recruitment is to be made every year. For convenience, Rule 17 is reproduced as under : “17. Constitution of Selection Committee for the purpose of recruitment to any post there shall be constituted a Selection Committee as follows : (1) Appointing Authority (2) An officer belonging to Scheduled Caste/Scheduled Tribe, nominated by the District Magistrate, or the appointing authority does not belong to Scheduled Caste/Schedule Tribe. If the appointing authority belongs to Scheduled Tribe, an officer other than those belonging to Scheduled Caste/Scheduled Tribe, Minority Community and Backward Class to be nominated by the District Magistrate. If the appointing authority belongs to Scheduled Tribe, an officer other than those belonging to Scheduled Caste/Scheduled Tribe, Minority Community and Backward Class to be nominated by the District Magistrate. (3) Two officers nominated by the appointing authority, one of whom shall be an officer belonging to minority community and other two backward classes, if such suitable officer is not available in his department or organisation, such suitable officer shall on the request of the appointing authority, be nominated by the District Magistrate and his failure to do so, by reason of non-availability of suitable officer shall be nominated by the Divisional Commissioner.” Rule 30 deals with the seniority which provides that the seniority shall be determined from the date of substantive appointment. Rule 30, for convenience, is reproduced as under : “30. Seniority.—(1) Except as hereinafter provided, the seniority of persons appointed under these rules shall be determined from the date of the order of substantive appointment and if two or more persons are appointed together, by the order in which their names are arranged in the appointment order : Provided that if the appointment order specifies a particular back date with effect from which a person is substantively appointed, that date will be deemed to be the date of order of substantive appointment, and in other cases, it will mean the date of issue of the order. (2) The seniority inter se of persons appointed directly on the result of any one selection, shall be the same as determined by the Selection Committee : (3) Provided that a candidate recruited directly may lose his seniority of he fails to join without valid reasons when vacancy is offered to him. The decision of the appointing authority as to the validity of reason shall be final.” 10. The procedure for recruitment by promotion has been given under Rule 16 of the Service Rules, which for convenience, is reproduced as under : “16. Procedure of recruitment by Promotion.—(1) Recruitment by promotion shall be made on the basis of seniority subject to rejection of unfit through the Departmental Selection Committee comprising :- (a) Appointing Authority Chairman. (b) Two gazetted officers nominated by the appointing authority, having supervisory capacity of the post for which selection is made. Procedure of recruitment by Promotion.—(1) Recruitment by promotion shall be made on the basis of seniority subject to rejection of unfit through the Departmental Selection Committee comprising :- (a) Appointing Authority Chairman. (b) Two gazetted officers nominated by the appointing authority, having supervisory capacity of the post for which selection is made. Members (2) The Director shall prepare eligibility lists of the candidates in accordance with the provisions of the U.P. Promotion by selection (on posts outside the purview of the Public Service Commission), Eligibility List Rules, 1986, and place it before the Selection Committee alongwith their character rolls and such other records pertaining to them, as may be considered proper. (3) The Selection Committee shall consider the cases of candidates on the basis of the records, referred to in sub-rule (2) and if it considers necessary, it may interview the candidates also. (4) The selection Committee shall prepare lists of selected candidates arranged in order of seniority as it stood in the cadre from which they are to be promoted and forward the same to the Director, who will send the names of requisite number of selected candidates to the concerned appointing authority.” 11. Under Rule 17 of the Rules, it has been provided that in case in any year of recruitment, appointments are made both by direct recruitment and by promotion, the Director shall prepare a combined select list by taking the names of candidates from the relevant lists in such manner that the prescribed percentage is maintained, the first name in the list being of the persons appointed by promotion. 12. Part IV deals with appointment, probation, confirmation and seniority. Rule 18 provides that the Director shall forward requisite number of names from the lists prepared under Rules 16 and 17 to the appointing authority from whom the requisition of vacancies are received under Rule 1, who shall make appointment in the order in which they stand in the list. It shall be appropriate to reproduce Rule 18 of the Service Rules. “18. It shall be appropriate to reproduce Rule 18 of the Service Rules. “18. Appointment.—(1) Subject to the provisions of sub-rule (2) the Director shall forward requisite number of names from the lists prepared under Rules 16 and 17 to the appointing authority from whom the requisition of vacancies are received under Rule 1, who shall make appointment in the order in which they stand in the list” (2) Where, in any year of recruitment appointments are made to be made both by direct recruitment and by promotion, regular appointments shall not be made unless selections are made from both the sources and a combined list is prepared in accordance with Rule 17. (3) If more than one order of appointment are issued in respect of any one selection, a combined order shall also be issued by the Director mentioned the names of the persons in order of seniority as determined in the selection or, as the case may be, as it stood in the cadre from which they are promoted. If the appointments are made both, by direct recruitment and by promotion, names shall be arranged in accordance with the cyclic order, referred to in Rule 17. The appointing authority shall make appointment by taking the names of the candidates in the order in which they stand in the list prepared under Rule 17. “ 13. Learned counsel for the petitioners has invited attention to the Government Order dated 13.4.2006 (Annexure 12 to writ petition No. 4773(S/S) of 2007). The State Government informed the Director of the Directorate of Land Acquisition to the effect that all Class-III posts working in the Directorate of Land Acquisition are declared as State cadre post and steps have been taken for appropriate amendment in the service rules. The State Government informed the Director of the Directorate of Land Acquisition to the effect that all Class-III posts working in the Directorate of Land Acquisition are declared as State cadre post and steps have been taken for appropriate amendment in the service rules. It shall be appropriate to reproduce paras 2 and 3 of the Government Order dated 13.4.2006 as under : Þ2- bl lEcU/k esa eq>s ;g dgus dk funs'k gqvk gS fd 'kklu esa lE;d fopkjksijkUr fy, x;s fu.kZ;kuqlkj funs'kd] Hkwfe v/;kfIr funs'kky; ds v/khu dk;Zjr Hkwfe v/;kfIr bdkb;ksa ds lewg x ds inksa dks rkRdkfyd ÁHkko ls ^jkT; Lrjh; la;xZ^ ?kksf"kr fd;k tkrk gSA 3- bl lEcU/k esa eq>s ;g Hkh dgus dk funs'k gqvk gS fd Hkwfe v/;kfIr bdkb;ksa ds lewg x ds inksa ds lEcU/k esa fuxZr dh x;h lsok fu;ekofy;ksa Øe'k% mŸkj Áns'k Hkwfe ¼jktLo foHkkx½ vehu lsok fu;ekoyh] 1993 ,oa mŸkj Áns'k Hkwfe vtZu ¼jktLo foHkkx½ fyfid oxhZ; lsok fu;ekoyh] 1993 rn~uqlkj ls'kksf/kr fd;s tkus dh dk;Zokgh vyx ls dh tk jgh gSA mDr la'kks/ku gksus rd] funs'kd] Hkwfe vè;kfIr lewg ^x^ ds dfeZ;ksa gsrq LFkkukUrj.k djus gsrq ^l{ke Ákf/kdkjh^ gksxs] tks 'kklu dh LFkkukUrj.k uhfr ds v/khu gh dkfeZdks dk LFkkukUrj.k l= esa djsaxs rFkk LFkkukUrj.k l= dh vof/k lekIr gksus ds mijkUr 'kklu dh iwokZuqefr ÁkIr djds gh lewg ^x^ ds dkfeZdks dk LFkkukUrj.k djsaxsaAÞ 14. It has not been disputed by the learned counsel for the respondents that in pursuance to the decision taken by the State Government keeping in view the Government Order dated 13.4.2006 (supra), till date, the 1993 Rules have not been amended which may facilitate inter district transfer of Group ‘C’ employees. Prior to issuance of the Government Order dated 13.4.2006, the State Government has informed all the District Magistrates vide circular dated 8.3.2006 (Annexure-11) that keeping in view the fact that the post of Group-C and Group-D in the Land Acquisition Department being district level post, employees cannot be transferred to the State of Uttaranchal under the Reorganisation Act. Prior to issuance of the Government Order dated 13.4.2006, the State Government has informed all the District Magistrates vide circular dated 8.3.2006 (Annexure-11) that keeping in view the fact that the post of Group-C and Group-D in the Land Acquisition Department being district level post, employees cannot be transferred to the State of Uttaranchal under the Reorganisation Act. Relevant portion from the circular dated 8.3.2006 is reproduced as under : Þmi;qDr fo"k;d vkids i= la[;k 670@vk0fo0Hkw0v0v0 ¼jks0la0½ bykgkckn fnukad 25-9-2006 ds lUnHkZ esa eq>s ;g Hkh dgus dk funs'k gqvk gS fd mŸkjkapy ,oa mŸkj Áns'k ds e/; jkT; Lrjh; dkfeZdksa dk caVokjk fd;k tkuk gSA pwafd Hkwfe v/;kfIr funs'kky; ds lewg ^x^ ,oa ^?k^ Js.kh ds dkfeZd ftyk Lrjh; gksrs gSa vr% bu dkfeZdksa dk nksuksa Áns'kksa ds e/; fu;ekuqlkj caVokjk ugha gksuk gSA Ñi;k rn~uqlkj ÁkFkhZ dks lwfpr dj nsaAÞ 15. It appears that instead of amending the rules keeping in view the circular dated 13.4.2006(supra), the Directorate of Land Acquisition tried to usurp the power of the appointing authority, in consequence thereof, the Government vide demi official letter dated 29.10.2007 (Annexure-10 to writ petition No. 4373 of 2007(S/S) informed the Director that the appointing authority for the post of Clerk, Amin and Driver shall remain District Magistrate. The State Government declined to declare the Director as appointing authority for the post of Group-C and Group-D available in the department of Land Acquisition. 16. Keeping in view the overwhelming evidence on record, it appears that at the level of the State Government, the post in question has always been treated as district level post and that is why vide circular dated 13.4.2006 (supra), the State Government informed the Directorate that appropriate steps have been taken to amend the service rules so that the persons working against Group-C posts in the Land Acquisition Department may be transferred from one district to other district. 17. Under Rule 4, the State Government has been empowered to determine the strength of cadre by bifurcating various posts, namely Reader-cum-Ahalmad, Head Clerk, Reader-cum-English Clerk, Senior Clerk, Account Clerk etc. However, Rule 14 provides that vacancies shall be determined by appointing authority and notified to the Director the number of vacancies liable to be filled up in a year. The procedure for recruitment under Rule 15 of 1993 Rules has been borrowed from 1985 Rules (supra). However, Rule 14 provides that vacancies shall be determined by appointing authority and notified to the Director the number of vacancies liable to be filled up in a year. The procedure for recruitment under Rule 15 of 1993 Rules has been borrowed from 1985 Rules (supra). Rule 5 of 1985 Rules provides that the strength of ministerial staff in particular department/office on each category of post shall be as determined by the government. Thus, according to 1985 Rules, the vacancies which are liable to be filled up may be bifurcated for the department as a whole or for office concerned. Under Rule 17 of 1985 Rules, appointing authority shall be the Chairman of the Selection Committee and according to Rule 30, seniority shall be from the date of substantive appointment. Thus, from the cumulative reading of 1993 and 1985 Rules, it appears that the vacancies shall be created at the behest of District Magistrate of the district concerned who is the appointing authority, though the strength of cadre for all posts is to be determined by the State Government. Meaning thereby though the State Government may determine the total number of posts for the department but such posts or vacancies shall be relegated to the District Magistrate of the district concerned who shall fill up the same at his end in accordance with 1985 Rules. The procedure prescribed for filling up the vacancies indicates that the vacancies shall be filled up at district level. It means the post in question shall be district level post. 18. The seniority is to be reckoned from the date of substantive appointment. Whether it is 1985 Rules or 1993 Rules, in both the Rules, it has been provided that the seniority shall be reckoned from the date of substantive appointment. Undoubtedly, substantive appointments are being done on the post in question at district level being District Magistrate as appointing authority. There is no provision in the Service Rules which may provide State level infrastructure to fill up the vacancies. Then, the question cropped up as to how the seniority of the substantively appointed employees in respective districts may be reckoned at State level in absence of any related provision in the rule. There is no provision in the Service Rules which may provide State level infrastructure to fill up the vacancies. Then, the question cropped up as to how the seniority of the substantively appointed employees in respective districts may be reckoned at State level in absence of any related provision in the rule. The Service Rules do not provide that the seniority shall be counted at State level by reckoning seniority of the employees appointed in various districts keeping in view their date of substantive appointment jointly. Ordinarily, in absence of any contrary provision, the reckoning of seniority from the date of substantive appointment means appointment done on a substantive post and the vacancies existing in a particular district filled up by the appointing authority. 19. Rule 18 of 1993 Rules empowers the Director to forward requisite number of names from the list prepared under Rules 16 and 17 to the appointing authority from whom requisite number of vacancies are received under Rule 1 and it is the appointing authority who is to make appointment in order in which they stand in the list. 1993 Rules do not indicate that the post in question shall be State level post and all the persons working in various districts shall constitute one unified cadre. Under Rule 9(4) of Chapter-II of Financial Hand Book, cadre has been defined as under : “4. Cadre means the strength of a service or a part of a service sanctioned as a separate unit.” Thus, under Financial Hand Book also, cadre does not necessarily mean covering the entire State service. The strength of service may be for whole of the State or part of a service sanctioned as a separate unit. In the present case, the strength of service under 1993 Rules has been given under Rule 2 but reading of the rule in totality indicates that after receiving information from the District Magistrate/Collector, the Director allocates the number of posts for district concerned and the same is filled by the appointing authority, i.e. the Collector of the district. There is no interference of the Director or State Government in filling up the post in question at their level. The Service Rules do not provide that the cadre shall be State Level Cadre and seniority of the persons appointed in various districts shall be considered combinedly. 20. There is no interference of the Director or State Government in filling up the post in question at their level. The Service Rules do not provide that the cadre shall be State Level Cadre and seniority of the persons appointed in various districts shall be considered combinedly. 20. In a case State of Punjab v. Joginder Singh, AIR 1963 SC 913 by a majority Constitution Bench of Hon’ble Supreme Court, their Lordships of Hon’ble Supreme Court held that the employees doing the same work but under different conditions of service and method of recruitment with different machinery may be treated as distinct service. The provincialised and State cadre created under the respective rules were held to be different service as the State Cadre in the case before the Hon’ble Supreme Court was borne on a devisional list, while under the rules, the inter se seniority and promotion of “provincialised” teachers was determined districtwise (paras 21, 22 and 23). 21. In State of Rajasthan and another v. Shantilal Jain and others, 1989 Supp (2) SCC 777, their Lordships of Hon’ble Supreme Court relied upon the judgments in Kishori Mohan Lal Bakshi v. Union of India, AIR 1962 SC 1139 and Reserve Bank of India v. N.C. Paliwal, (1976) 4 SCC 838 and held that it falls within the domain of the government to bifurcate or unify a cadre. The creation of cadre in service of the State is a matter which should be left entirely to the government. 22. In the present case, though the government is empowered to create a cadre whether State or district level, but that too may be done only by providing or making necessary amendment in the Service Rules. 23. In a case in Ran Singh Malik v. State of Haryana and others, 2002(3) SCC 182 , Hon’ble Supreme Court held that where Rule does not define the cadre and also does not indicate as to which post would be parent in the cadre, then in such a situation the normal connotation would apply and ordinarily a cadre means the strength of service or the part of service so determined by the government constituting the post therein. It shall be appropriate to reproduce the relevant portion from the case of Ran Singh Malik (supra), to quote : “7................The aforesaid Rule nowhere defined the cadre or indicated as to which post would be borne in the cadre. It shall be appropriate to reproduce the relevant portion from the case of Ran Singh Malik (supra), to quote : “7................The aforesaid Rule nowhere defined the cadre or indicated as to which post would be borne in the cadre. In the absence of such definition of cadre in the Rule, the normal connotation would apply, and therefore, a cadre would ordinarily mean the strength of a service or a part of the service so determined by the Government constituting the post therein. Usually if the employer decides to create any ex-cadre post which may be necessary for any specialised scheme in keeping with the qualification of the personnel required to man that post, it is so indicated in the order of creation of the post................” 24. In R.K. Sethi and another v. Oil & Natural Gas Commission and others. (1997) 10 SCC 616 , their Lordships of Hon’ble Supreme Court held that formation of centralised and regional cadre is justified and direction issued by the High Court for constitution of one centralised cadre was held to be illegal and set aside. 25. In view of above, while interpreting the Rules in question and to hold that the post in question are district level post, the government order dated 13.4.2006 (Annexure 12 to writ petition No. 4773(S/S) of 2007) is relevant which shows that the State Government took a decision to declare the post in question as State level post and amendment in the Rules was proposed but till date, rules have not been amended. 26. The other letter dated 8.3.2006 (Annexure-11) reveals that the State Government has rejected the proposal to declare the Director of the department as appointing authority. 27. The arguments advanced by Mr. Jai Shanker Mishra, learned Standing Counsel by placing reliance on the Government Order dated 13.4.2006 (supra) as well as Rule 2 of 1993 Rules seems to be not correct keeping in view the fact that till date, rules have not been amended and by executive instructions, the statutory provisions cannot be modified or diluted. 28. Hon’ble Supreme Court in the case in D.D.A. v. Joginder S. Monga, 2004(2) SCC 297 ; followed by General Manager, Uttaranchal Jal Sansthan v. Laxmi Devi, 2009(7) 7 SCC 205, reiterated the settled proposition of law that administrative instructions or circular shall not prevail over the statutory rules. The executive instructions cannot run contrary to the statutory provisions. 28. Hon’ble Supreme Court in the case in D.D.A. v. Joginder S. Monga, 2004(2) SCC 297 ; followed by General Manager, Uttaranchal Jal Sansthan v. Laxmi Devi, 2009(7) 7 SCC 205, reiterated the settled proposition of law that administrative instructions or circular shall not prevail over the statutory rules. The executive instructions cannot run contrary to the statutory provisions. Accordingly, though the decision circulated vide order dated 13.4.2006, State decided to constitute State Level Cadre but in view of admitted fact that till date, 1985 or 1993 Rules (supra) has not been amended in appropriate manner, the posts in question may not be termed as State Level post, empowering the State to treat all the vacancies available in various districts of the State belonging to one cadre. Of course, in case Rules are amended in appropriate manner and the State Government acquires power, only then, the post in question may be treated as State Level Post constituting one cadre. 29. Learned Standing Counsel also relied upon the judgment of Hon’ble Single Judge dated 17.4.2006 passed in writ petition No. 1969 of 2006 Ram Murti Bajpai and others v. State of U.P. and others against which a Special Appeal is pending. The Division Bench of this Court directed the parties to maintain status quo. 30. However, so far as binding effect of the case of Ram Murti Bajpai is concerned, with profound respect, while delivering the judgment holding all the post in one cadre, hence they are held to be transferable from one district to other, attention of Hon’ble Single Judge was not drawn to various statutory provisions, proposition of law and the judgment of Hon’ble Supreme Court, referred to hereinabove. Accordingly, the judgment in Ram Murti Bajpai’s case(supra) seems to be per incurium to the law settled by Hon’ble Supreme Court, referred to hereinabove. 31. Accordingly, the judgment in Ram Murti Bajpai’s case(supra) seems to be per incurium to the law settled by Hon’ble Supreme Court, referred to hereinabove. 31. Per incurium means in ignorance of or without taking note of some statutory provisions or the judgement of Hon’ble Supreme Court or the larger Bench, vide; State of Bihar v. Kalika Singh and others, 2003 (5) SCC 448 ; State of U.P and another v. Synthetics and Chemicals Ltd. And another, (1991) 4 SCC 139 ; Mamleshwar Prasad and others v. Kanhaiya Lal, AIR 1975 SC 907 ; Sunita Devi v. State of Bihar, 2005 (1)SCC 608 ; Ram Gopal Baheti v. Giridharilal Soni and others, 1999 (3) SCC 112 ; Municipal Corporation of Delhi v. Gurnam Kaur, AIR 1988 SC 1531 ; Sarnam Singh v. Dy. Director of Consolidation and others, 1999 (5) SCC 638 and State v. Ratan Lal Arora, 2004 (4) SCC 590 . 32. In view of above, though under the Rules, the strength of the post in question are decided by the State Government/Director but keeping in view the condition of service, appointing authority and the manner of appointment, the posts in question seem to be district level post. 33. In a landmark judgment in E.P. Royappa v. State of Tamil Nadu and another, (1974) 4 SCC 3 , Hon’ble Supreme Court held that the State Government cannot ordinarily create equivalence by saying that a particular non-cadre post, whatever be the nature and responsibilities of the functions and duties attached to it, shall be in the rank or grade of any cadre post it likes. Assessment should be made objectively while deciding such issue. To reproduce relevant portion from the case of R.P. Royappa (supra), to quote : “83..............The State Government cannot artificially create equivalence by saying that a particular non-Cadre post, whatever be the nature and responsibilities of the functions and duties attached to it, shall be in the rank or grade of any Cadre post it likes. To reproduce relevant portion from the case of R.P. Royappa (supra), to quote : “83..............The State Government cannot artificially create equivalence by saying that a particular non-Cadre post, whatever be the nature and responsibilities of the functions and duties attached to it, shall be in the rank or grade of any Cadre post it likes. The State Government has to apply its mind and make an objective assessment of the nature and responsibilities of the functions and duties and determine which is the Cadre post to which such non-Cadre post can be regarded as equivalent in status and responsibility and then only it can make a declaration of equivalence.” In E.P. Royappa (supra), Hon’ble Justice Bhagwati on behalf of the Court while concurring with the judgment of Hon’ble Chief Justice Ray observed that principle ensuring the equality of opportunity in public employment is vital for building up of the new classes egalitarian society envisaged in the Constitution. Article 14 is the genes while Art. 16 is a species. To produce relevant portion, to quote : “85................In other words, Article 14 is the genus while Article 16 is a species. Article 16 gives effect to the doctrine of ‘equality in all matters relating to public employment. The basic principle which, therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination. Now, what is the content and reach of this great equalising principle? It is a founding faith, to use the words of Bose. J., “a way of life”, and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude . Equality is a dynamic concept with many aspects and dimensions and it cannot be “cribbed, cabined and confined” within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it effects any matter relating to public employment, it is also violative of Article 16. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it effects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power and that is hit by Articles 14 and 16. Mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice : in fact the latter comprehends the former. Both are inhibited by Articles 14 and 16.” Accordingly, it is not open for the State to proceed in violation of the statutory provisions to meet out the exigency of service. Articles 14 and 16 of the Constitution of India require for the State to act in a just and fair manner in accordance with statutory provisions. Necessity howsoever grave may be, it does not empower the State to act in violation of the statutory provisions. 34. One of the arguments advanced by the learned Standing Counsel is that after completion of necessary task under Land Acquisition Act, in a particular district, it shall not be possible for the State Government to retain the employees in a district and pay them salary without work. They have to be shifted from one district to other. This contingency has not been dealt with in the Service Rules. They have to be shifted from one district to other. This contingency has not been dealt with in the Service Rules. Accordingly, in case work with regard to land acquisition comes to an end in a district, then the government has got right to fill up the vacuum by issuing an order or notification for shifting of entire infrastructure of a district to other district or a place where their services are required but so far as routine transfer is concerned, keeping in view the manner of appointment as well as the provisions contained in the Rules (supra), the Rules do not speak for State level cadre or State level post. The petitioners cannot be transferred to other district. 35. In view of above, the writ petitions deserve to be and are hereby allowed. A writ in the nature of certiorari is issued quashing the impugned transfer orders with consequential benefits. The petitioners shall be retained in their respective district with due salary in case they are not willing to join the other districts. It shall be open for the State Government to amend the Rules in terms of the Government Order dated 13.4.2006 and thereafter pass a fresh order in accordance with Rules. The writ petitions are allowed accordingly. Costs easy. ————