Whether govt can create separate cadre in govt job by govt resolution?

We are unable to accept the contention of learned Counsel
Shri   Talekar   that   a   separate   cadre   can   be   created   by   the   Government
Resolution.   Reading the provisions of Sections 248 & 274, it would be clear
that matters regarding recruitment, etc. are to be regulated by rules to be
framed by the State Government in accordance with Section 274.  No doubt,
that a power is given to the State Government under Sections 248 and 274
itself   that   in   the   matter   of   exigency,   the   Government   may   also   regulate
conditions of service by a general or special order.  However, it is a settled law
that a proviso cannot be permitted to govern substantive provision.  When a
substantive   provision   mandates   the   Government   to   frame   rules   regarding
recruitment,   etc.,   the   proviso   will   have   to  be   read   in   the   manner   that   it
permits the Government to depart from the main provision if exceptional and
compelling case is made out.  
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.3424  OF 1997   
 Santosh Ekoba Sonavane,
  
Versus
 State of Maharashtra,
  
CORAM: B.R.GAVAI AND 
   S.V.GANGAPURWALA, JJ.
DATE     : 2nd July, 2010.

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