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26. The decision in Chandrekant's case (supra) does not even remotely support the contention advanced on. behalf of the petitioners. In that case, the Court had to resolve a seniority dispute between promotes and direct recruits to the posts of junior Assistants. A circular which bore the signatures of the Assistant Secretary In Government of Maharashtra General Administration Department under endorsement by order and in the name of Governor of Maharashtra. came up for interpretation. The petitioners, who were promotes, felt aggrieved by the circular dated 27th March, 1969, and the seniority list dated 30th March. 1970, that was drawn up in accordance with the principles enunciated in the said circular. This circular and other such circulars were challenged on the principal ground that the said circulars/resolutions or orders were in the nature of executive or administrative instructions and, as such could not override the statutory 1957 Rules, which had been framed in exercise of the powers conferred under the proviso to Art. 309 of the Constitution and that such circulars did not have any force of law and at any rate being inconsistent with the statutory rule framed in exercise of the powers conferred under proviso to Art. 309 of the Constitution could not affect their rights. The circulars, in question, were claimed to be executive instructions for the reasons that they bore the kind of endorsement, already adverted to. On behalf of the respondents, such circulars were claimed to be rules promulgated by the governor in terms of the proviso to Art. 309 of the Constitution. The petitioners had sought to refute that claim by adverting to the fact that in the manner these were authenticated, only the executive instructions are issued and not the rules.

27. It was also canvassed that the said circular/resolutions did not refer to the source of power, under which being issued by the Governor. The contention led to the formulation of following three questions by the referring Bench for the decision of the Larger Bench:--

(1) Whether the Circulars, Orders or Resolutions or parts thereof laying down rules or principles of general application, which have to be observed in the recruitment of fixation of seniority of Government servants generally or a particular class of them, and which have been duly authenticated by a signature under the endorsement "by order and in the name of the Governor of Maharashtra" and intended to be applicable straightway are or amount to the rules framed in exercise of the powers conferred under the proviso to Art. 309 of the Constitution although the said circulars Orders, or Resolutions do not expressly state that the same are made or issued in exercise of the powers conferred under the proviso to Art. 309 of the Constitution and are not published in the Government Gazette?
(2) Whether the said Circulars, Orders or Resolutions or parts of them as set Out in Question No. 1 above must be deemed to be rules made in exercise of the powers conferred under the proviso to Art. 309 of the Constitution of India?
(3) Whether the said Circulars. Orders or Resolutions or parts thereof as set out in Question No. 1 above have the same force or effect in law as a rule or rules made in exercise of the powers conferred under the proviso to Art. 309 of the Constitution of India?

28. Tulzapurkar J. (as he then was) after referring to the various provisions of the Constitution and R.9 of the Maharashtra Government Rules of Business observed as follows:--

"Having regard to the aforesaid material provisions of the Constitution, namely provisions contained in Art. 309 together with the proviso thereunder as well as the provisions contained in Art. 166 and the relevant provisions contained in the Maharashtra Government Rules of Business, it will appear clear that the rule-making power conferred upon the Governor under the proviso to Art. 309, which is legislative in character and the power to issue Circulars, Resolutions or Orders containing executive instructions in exercise of the executive power conferred upon the State under An. 166 do overlap so far as the subject-matter of Rules of recruitment and conditions of public services of State Government employees are concerned, but at the same time it cannot be disputed that all executive instructions or directions issued by the State Government in exercise of its executive power conferred under Art. 166 touching this subject-matter or topic must yield to rules that may be framed by the Governor under the proviso to Art. 309 of the Constitution in their turn, the rules framed by the Governor under the proviso to Art. 309 would be subject to any enactment made by appropriate legislature under substantive provision contained in Art. 309 of the Constitution itself. In other words, to the extent to which and in so far as executive instructions or directions issued by the State Government in exercise of its power under Art. 166 would be inconsistent with Rules that may be framed by the Governor under the proviso to Art. 309 of the Constitution, such instructions will have to be disregarded. ... ... ... ... ... ... ... ... ...