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4 Since the facts and the contentions raised in the said case stated in the judgment of this Court we can safely quote the conclusion that this Court recorded in its judgment. This Court noticed that it was neither asserted nor shown that the Subordinate Education Service upper division had been originally created by a Rule under Article 309 or a Government order under the proviso to the said Article (it seems created by a Rule under Article 309 is a mistake for created by an Act of legislature as envisaged under Article 300 and a Government order under the proviso is a mistake for the Rule framed under the said Article). The Bench rejected the contention that the Bihar Education Code which contained some reference to the provisions for appointment promotion etc. had statutory force and recorded its finding that the Code itself had no statutory force before 1960. It found no justification to the grievance of the petitioners in the said case that any prejudice or legal injury was caused to the members of the Subordinate Education Service upper division general cadre by recruiting the teachers appointed under the Higher Secondary Scheme. After the judgment in the said case contending inter alia that this Court had erred in holding that the Bihar Education Code had no statutory force prior to 1960 and that there was an apparent error on the face of the record in holding that the Subordinate Education Service was not created by any Rule framed under the proviso to Article 309 of the Constitution of India, an application to review the said judgment was filed. A notification issued on behalf of the Governor of Bihar on 26-4-1950, to which we shall advert in our judgment, was also brought on the record to support the contention that the service was created by the Government by statutory Rules framed it under Article 309 of the Constitution of India. This Court, however, found no merit in the review application and the prayer to review the judgment was accordingly rejected. The petitioners of C.W.J.C. 2956/75 also preferred Special Leave Petition being S. L. P. No. 8078/80 before the Supreme Court. The Supreme Court, however, dismissed the said application in limine.

12. Since the learned Counsel for the parties have taken us through the history of the case and we cannot miss to notice that this Court once found the Governmental action of integrating the posts held by the Higher Secondary Scheme teachers and other upper division Subordinate Education Service teachers because at no time posts created for the Multipurpose Higher Secondary schools were ever placed either higher or lower than the posts in the upper division of the Subordinate Education Service, we can safely proceed on the presumption that until the impugned Rules were brought into existence the State and all concern acknowledged that the Higher Secondary Scheme teachers were members of the upper division of the Subordinate Education Service and the two together formed one cadre and thus fell in order of seniority reckoned with effect from their date of entering into the said service. A brief discussion on the question whether the Higher Secondary Scheme teachers were members of the Subordinate Service or not and whether they formed a common cadre with other members of the said service or not has, however, become necessary in view of straneous efforts of Mr. Mukherjee who has tried to persuade us to hold that Rules embodied in the Bihar Education Code which provided for appointments to the Subordinate Education Service, promotions etc. were the statutory Rules having so recognised to have been framed under Article 309 of the Constitution of India. The answer is available to the said contention of Mr. Mukherjee in the notification dated 18-11-1986 which contains the Rules itself. Rule 2 which we have already quoted has itself recognised that some officers were directly recruited in the upper division of Subordinate Education Service who are given the nomenclature when organised in a separate cadre as the members of the Subordinate Education Service, Higher Secondary cadre. Had the Higher Secondary Scheme teachers not been appointed in the upper division of the Subordinate Education Service and formed a separate class the Rule could not have called them directly recruited in the upper division of the Subordinate Education Service. If there is any force in the contention of Mr. Mukherjee that in the case of the Higher Secondary teachers Rules as contained in the Bihar Education Code were not followed (assuming that Bihar Education Code Rules were statutory Rules) then all who were directly appointed in the Multipurpose Higher Secondary Schools were not appointed in the upper division of the Subordinate Education Service, why then the notification dated 18-11-1986 has said "the officers directly recruited in the upper division of Subordinate Education Service". Does it not mean that the Rule has been framed on a wrong premises. It is not then a valid conclusion that Mr. Mukherjee also suggests that the Rule be declared ultra vires.

14. Mr. Mukherjee's contention precisely is that even if it is not shown that the Rules contained in the Bihar Education Code are enactments or statutory Rules or orders but are orders of the Government of the State otherwise issued which regulated the recruitment and condition of service of persons appointed to public services and posts in connection with the affair of the State of Bihar also because statutory Rules as if framed under Article 309 of the Constitution of India. Mr. Mukherjee is right in suggesting that this Court had not taken the said notification into consideration when it disposed of C. W. 3. C. No. 2956/75 but he cannot suggest that this Court did not at all take the said notification into consideration in considering whether the Bihar Education Code had statutory force or not. We have already noticed that an application to review the judgment was filed before this Court.

15. The review application was based primarily on the ground that the notification dated 15-4-1950 was not taken into consideration by the court in deciding C.W.J.C. No. 2956 of 1975. This Court, however, found no merit in the said contention and even on consideration of the said notification could find no fault with its judgment in C.W.J.C. No. 2956 of 1975. The matter was then taken to the Supreme Court and before the Supreme Court, the said error was highlighted. The Supreme Court, however, dismissed the petition for special leave. Thus, the Supreme Court found no fault with the judgment of this Court in C.W.J.C. No. 2956 of 1975. Even otherwise on merits if we venture to say, it is not possible to agree with the contention of Mr. Mukherjee that notification dated 15-4-1950 can be extended to the rules in the Bihar Education Code Such executive orders of the State which governed is the service condition of its employees, including one in respect of which Mr. Mukherjee was sure to govern the order of the year, 1944. They were instruments of the Government of the State, duly authenticated and published to apply to the employees concerned. Rules, as engrafted in Article 838 however have nothing statutory, yet the fact that they are bodily included in 1944. Government order may make them statutory Rules 806 and 320 of 1961 edition of the Education Code corresponding to Rules 851 and 349 of the 1944 edition appear to exclusively speak about the subordinate education service, inasmuch as they together referred to the division of the service into the lower division and the upper division and Rules 802/318 of 1944/61 edition, which speak of the minimum qualification of a trained graduate for appointment in the subordinate education service do not apparently find mention in any Government instrument, some notes appended under them, however suggest that they are based on certain Government orders, something inferentially drawn or taken out from a certain Government instrument itself cannot take the place of the instrument of the Government, All orders, whether statutory or executive, have to be expressed and issued in the name of the Governor of the State and duly published. Mr. Mukharjee has not been able to show any such Government order to make the previous judgment of this Court suspect as to its correctness about the Bihar Education Code being not statutory until 1961. Moreover acceptance of the contention of Mr. Mukherjee shall land the subordinate education service in more difficulties than presently faced by it. If the statutory rules divided the service into the lower division and the upper division, the Government of the State could not by its executive action remove the lower division and make all lower division teachers upper division teachers. Since this is a fact duly established and acknowledged, acceptance of the contention of Mr. Mukherjee in this behalf shall send all those belonging to the lower division to the lower division and deny to them the advantages which the executive action of the State has given to them. We have no hesitation in holding that even If there was some semblance of a statutory character to the Bihar Education Code or the rules referred to above, today it is of no consequence and the service has been governed by the executive instructions of the State until the notification contained in the impugned rules has been issued.