In this application under Article 226 of the Constitution the petitioner has challenged the validity of the Service Order 8 (5) (b) of the Assam Town and Country Planning Service Order, 1990 and also challenged the office order dated 1st March, 1993, giving a direction that Shri JC Goswami, ACS, Director, Municipal Administration, Assam to hold concurrent charge of the post of Director, Town and Country Planning in addition to his own duties temporarily and until further orders. 2. The facts of the case are as follows: The petitioner is a graduate in Civil Engineering with good academic career. He also obtained Master Degree in Engineering (Public Health) in 1968. Thereafter he joined as Executive Engineer under the Town and Country Planning Department at Guwahati and he worked as such for more than 21 years, without any promotion. He submitted representations before the Commissioner and Secretary, Town and Country Planning Department, Assam praying inter alia that he being the seniormost person in the department next to the Director, ought to be promoted. There was of course no post of Superintending Engineer at that time. He also requested that till creation of the new post of Superintending Engineer he be allowed to hold the charge of the post of Joint Director. A new post of Superintending Engineer was created and the petitioner was promoted to the post of Superintending Engineer under Regulation 4 (d) of the Assam Public Service Commission (Limitation of Functions) Regulation, 1951. Accordingly, the petitioner joined in the month of January, 1993 in the promotional post of Superintending Engineer in the said Department. Though the post of Superintending Engineer was created temporarily the petitioner was working as such till the date of filing of the Civil Rule. The petitioner served as Executive Engineer with effect from 1.7.71 to 6.1.93 and Superintending Engineer from 7.1.93 onwards. 3. The Director of the Department Sri Rabindra Nath Bhattacharyya retired from service on 31.8.92. However, the Government extended the period for six months. On his retirement after extended period he handed over charge to Sri JC Goswami, ACS, who was directed to hold the charge of Director of the Department till the post was filled up on promotion. 3. The Director of the Department Sri Rabindra Nath Bhattacharyya retired from service on 31.8.92. However, the Government extended the period for six months. On his retirement after extended period he handed over charge to Sri JC Goswami, ACS, who was directed to hold the charge of Director of the Department till the post was filled up on promotion. According to the petitioner most of the Engineer who were recruited by the Government of Assam during the period of 1969-72 in the Town and Country Planning Department did not possess Master Degree in Public Health Engineering and they were sent for higher studies on deputation to obtain ME (PH) for preparation and execution of Master Plan for Drainage and Sewage. But the Government of Assam did not send any Engineer on deputation to obtain Master Degree or Diploma in Town and Country Planning from any recognised Institute. According to the petitioner the Government preferred and gave more stress on the Master Degree in Public Health Engineering in case of the Engineers. The petitioner also states that the nature of work in this Department requires Engineers of special training in Public Health Engineering. The petitioner further states that though the Town and Country Planning Act, 1959 came into force on 17.2.60 till the date of filing of the Civil Rule no service rules were framed under the proviso to Article 309 of the Constitution of India. 4. However, the Notification dated 16.4.90 was published by the Government under the head of Assam Town and Country Planning Service Order, 1990. This Order came into force from the date of publication of the said notification. Accordingly to the petitioner clause 8 (5) (b) of the said Service Order is in conflict with the constitutional provision. The provisions of the said Order have created dissatisfaction in the minds of the members of the said Department and to that effect the Engineers of the said Department adopted a resolution in this , regard. It has also been stated therein that this Service Order has been prepared for the benefit of the planners only and thereby totally ignored the promotional aspects of the Engineers, and therefore this was not at all justified and acceptable to the Engineers of Town and Country Planning Department. The said clause has adverse effect on the future service life of the petitioner and others similar Engineers. The said clause has adverse effect on the future service life of the petitioner and others similar Engineers. In spite of several representations made by the petitioner, me Government has not done anything. By Annexure J office order an ACS Officer Sri JC Goswami was directed to hold charge as the Government did not find any suitable candidate for the said post. 5. Sri JC Goswami is also not qualified for doing the job as per clause 8 (5) (b). On the other hand the petitioner having served in the Department for such a long time with experience in various Departments as referred to in his petition plight to have been given opportunity of serving as Director. Earlier persons with similar experience and qualification were appointed as such and the petitioner became eligible for appointment as per the profess norms of the Department. But he was not given promotion and instead the present order was passed. Being dissatisfied with the Annexure J order dated 1st March, 1993 the petitioner have filed this present writ petition. 6. An affidavit-in-opposition has been filed on behalf of respondent Nos.1 and 2. In the said affidavit-in-opposition these respondent has tried to justify the provisions contained in Order 8 (5) (b) of Service Order, 1990. It is also stated in the said affidavit-in-opposition that pursuant to the ROP Rules, 1964, the Government amended the rule vide Notification No.FEP.34 (54) 65/61 dated 31.8.71. As per the said amendment those employees who possesses Degree or Diploma in Town Planning would get the revised scale of pay and the Assam Town and Country Planning Service Order, 1990 provides promotion to those employees who possess the Degree/Diploma in Town Planning and therefore, this cannot be said to be a new to the Service Order of 1990. The respondents in the said affidavit-in-opposition also stated that the ROP Rules, 1964 which was amended in 1971 came up for consideration in Writ Appeal No.3 of 1993 (Sri JK Bhuyan vs. State of Assam). This Court upheld the said amendment. The respondents in the said affidavit-in-opposition also stated that the ROP Rules, 1964 which was amended in 1971 came up for consideration in Writ Appeal No.3 of 1993 (Sri JK Bhuyan vs. State of Assam). This Court upheld the said amendment. However, the Government considered the case of the employees who do not possess the prescribed qualification of Degree/Diploma in Town Planning and accordingly a post of Superintending Engineer had been created which is at par with the Directorate of Agriculture to give promotional avenue to the Engineers serving the Department and accordingly the writ petitioner was promoted to the post of Superintending Engineer on 11.11.92 and he joined the post accordingly. Shri JC Goswami, the senior most ACS officer was directed to hold concurrent charge of the Director, Town and Country Planning temporarily in addition to his own duties. He handed over the charge of the Director, Town and Country Planning to Shri AC Thakur who was held to be senior having the requisite qualification of Degree/Diploma in Town Planning. These respondents have also denied that most of the Engineers were sent on deputation to obtain ME (PH). They have also stated that the petitioner did not avail the opportunity of qualifying himself of degree-holder in Town and Country Planning though several employees had in fact availed this opportunity and qualified themselves to be eligible for promotion to the post of Joint Director. They have also stated that the Assam Town and Country Planning Service Order was framed with a view to fulfil and propagate the cause of the Urban Planning as envisaged in the Assam Town and Country Planning Act, 1959 (as amended). The functions of Town and Country Planning basically requires persons from various background with an orientation to Town Planning and as such persons qualified in various disciplines like Geography, Economics, Sociology, Architecture and Civil Engineering etc. are formally trained in Town Planning and appointed to fulfil the various posts and persons qualified in Town Planning are considered eligible for promotion to the post of Joint Director/Director. 7. I heard both sides. 8. Mr. are formally trained in Town Planning and appointed to fulfil the various posts and persons qualified in Town Planning are considered eligible for promotion to the post of Joint Director/Director. 7. I heard both sides. 8. Mr. AK Bhattacharyya, learned council appearing for the petitioner submitted that the Degree or Diploma in Town Planning was not considered earlier for appointment to the post of Joint Director before the Assam Town and Country Planning Service Order came into force and the petitioner ought to have been appointed as there were vacancies. However, the authority kept the matter pending and thereafter the Assam Town and Country Planning Service Order, 1990 was published by the Notification dated 16th April, 1990, where for the first time the Degree or Diploma in Town and Country Planning was added as qualification for appointment to the. post of Joint Director and this Order in facts gave for all practical purposes retrospective effect and thereby the right acquired by the petitioner before this Order came into force was nullified after the publication of the aforesaid Order. Mr. Bhattacharyya further submitted that the petitioner being eligible to be appointed as Joint Director at the material time was denied his legitimate due and his expectation was not at all considered. 9. Mr.SN Bhuyan, learned Advocate General on the other hand supported the provisions contained in the Order. 10. On the rival contentions of the parties it is to be seen whether the provisions contained in Order 8 (5) (b) can sustain in law and whether the Annexure J order can be justified. In Order 8 (5) (b) it is stated that for promotion to the cadre of Joint Director an officer shall be eligible if he has rendered minimum of 5 (five) years of continuous service in the cadre of Executive Engineer or Senior Research Officer and has a post-graduate Degree or Diploma in Town and Country Planning from a recognised Institute on 1st January of the year of promotion, provided that in the event of the Selection Board being unable to recommend any suitable person in the chain for filling up the post of the Joint Director, the appointing authority may fill up the post on deputation basis. 11. 11. Mr.Bhattacharyya has placed reliance on the following decisions :UP Awas Evam Vikash Parishad vs. Cyan Devi, (1995) 2 SCC 326; K.Narayanan & others vs. State of Karnataka & others, 1994 Supp (1) SCC 44 and also a decision of this Court reported in Himat Singka Motor Work Ltd. vs. State of Assam, (1995) 1GLR 384 [1995 (l)GLJ 151]. 12. Relying on the above decisions, the learned counsel for the petitioner submitted that the petitioner being qualified for promotion to the post of Joint Director before this Service Order came into force and therefore he has legitimate expectation to get promotion as per the procedure. But this was denied and the matter was kept pending and by that time when the matter came up for consideration the present Service Order had completely debarred the petitioner from being promoted to the post of Joint Director. 13. In K.Narayanan & others (supra) the Supreme Court had the occasion to deal with the matter regarding appointment by transfer and the restrospective operation of rules providing for appointment by transfer to a higher cadre with retrospective effect on acquiring the prescribed qualification was held to be bad. In the said decision the Apex Court held that Article 3 09 of the Constitution empowers the appropriate Legislature to frame rules to regulate recruitment to public service and the post. Appointment, selection, promotion, deputation are well known methods of recruitment. Even appointment by transfer is not unknown. But any rule framed is subject to other provisions of the Constitution. Therefore it has to be tested on rule of equality. Transfer is normally resorted in same cadre. But when it is made in a different and higher cadre it must not be violative of constitutional guarantee and the rule of fairness. Providing for appointment of a diploma holder from the cadre of Junior Engineer to Assistant Engineer from back date without any test or selection on eligibility only does not sound reasonable and fair. Why was it done is apparent from the following nothings by the Secretary : "The most important issue was regarding the date of transfer of the Junior Engineer acquiring graduate qualifications, the weightage of past service had to be taken into consideration. Why was it done is apparent from the following nothings by the Secretary : "The most important issue was regarding the date of transfer of the Junior Engineer acquiring graduate qualifications, the weightage of past service had to be taken into consideration. In the proposal submitted to the Cabinet this crucial aspect was not outlined specifically and the impression that was created was that the transfer would take place with prospective effect in such an event the weightage of previous service would have to be confined only upto date of graduation and this would not have been of any advantage to most of the Junior Engineers who have acquired the degree qualification several years ago. Even if the weightage of past service after graduation and upto date of appointment as Junior Engineers was given the transferees would not have gained any significant advantage in the matter of national seniority. The Karnataka Graduate Engineers h?ve strongly represented on this issue and have urged that their transfer to the Assistant Engineer's cadre should be with retrospective effect i.e., from the date they have acquired graduate qualification. In support of their argument they have pointed out then even in Andhra Pradesh a similar step was taken in that transfer was allowed with retrospective effect. The point raised by the Graduate Engineer Association have been examined and it is felt that their demand to have the transfer effected retrospective effect has some justification in view of long service rendered by the Junior Engineers before and after acquiring graduate qualification. If this benefit is not given, the amendment to the C&R Rules allowing for their transfer would be of little use for many of the senior members of the Graduate Engineers Association who have been fighting for this change for many years. Therefore taking an overall sympathatic view it is proposed that we may allow for the transfer of Junior Engineers who acquired graduate qualification with retrospective effect from the date of acquisition of such qualification subject to the availability of vacancies at that time in the Assistant Engineer's cadre. It is seen that the first batch of the in-service Junior Engineers took their graduate degree in 1976 and hence the notification amending the rules would have to be effective from January 1, 1976. It is seen that the first batch of the in-service Junior Engineers took their graduate degree in 1976 and hence the notification amending the rules would have to be effective from January 1, 1976. Rules were thus bent and made retrospective as a sympathetic consideration as many Junior Engineers who were working since long would not have derived any benefit otherwise. May be true but if the extension of such benefit impinges upon the constitutional guarantee of equality then it cannot be upheld. And that does stand disturbed. Nothing further need be said. Nor it is necessary to pronounce on the validity of a rule which in the class of appointment by direct recruitment includes appointment by transfer resulting in entry of one class by competition or selection and other by acquisition of minimum qualification as the appellant did not challenge the rule of appointment by transfer but confined their claim to its operation retrospectively." The Supreme Court further observed that Rules operate prospectively. Retrospectively is an exception. Even where the statute permits framing of rule with retrospective effect the exercise of power must not operate discriminatory or in violation of any constitutional rights so as to affect vested right. The rule making authority should not be permitted normally to act in the past. The impugned rule made in 1985 permitting appointment by transfer and making it operative from 1976 subject to availability of a vacancy in effect results in appointing a Junior Engineer in 1986 with effect from 1976. Retrospectivity of the rules is a camouflage for appointment of Junior Engineer from a back date. In the event the Supreme Court observed that the rule operates viciously against all those Assistant Engineers who were appointed between 1976 to 1985. In Ex-Capt. KC Arora vs. State of Haryana and PD Agarwal vs. State of UP it was held that the President or Governor cannot make such retrospective rules under Article 309 of the Constitution as it contravenes Articles 14, 16 or 311 and affect vested right of an employee. 14. In UP A was Evam Vikash Parishad vs. Gyandi Devi (supra) the Supreme Court had the occasion to deal with the matter relating to principle of legitimate expectation. 14. In UP A was Evam Vikash Parishad vs. Gyandi Devi (supra) the Supreme Court had the occasion to deal with the matter relating to principle of legitimate expectation. In the said decision the Apex Court held thus : "In situations where even though a person has no enforceable right yet he is affected or likely to be affected by the order passed by a public authority the Courts have evolved the principle of legitimate expectation. The expression which is said to have originated from the judgment of Lord Denning in Schmidt vs. Secy, of State for Home Affairs is now well established in public law. In Attorney General of Hong Kong vs. Ng Yuen Shiu, Privy Council applied this principle where expectations were "based upon some statement or undertaking by or on behalf of the public authority" and observed : "Accordingly 'legitimate exceptations' in this context are capable of including expectation which go beyond enforceable legal right, provided they have some reasonable basis. A person may have a legitimate expectation of being treated in a certain way by an administrative authority even though he has no legal right in private law to receive such treatment." 15. In the present case the petitioner has challenged the validity and legality of the Service Order 8 (5) (b) on the ground that the petitioner without having any Degree or Diploma in Town and Country Planning will be deprived of his right to get promotion to the post of Joint Director. Therefore it is to be seen whether the qualification added under the Service Order 8 (5) (b) is reasonable or not. 16. It is an admitted fact that the Town and Country Planning Department assumes much importance in the present day with the urbanisation of the towns etc. This subject is a very specialised subject. Therefore, special knowledge of officers in this Department is essential and the additional qualification of Degree or Diploma in the Town and Country Planning is necessary. In this view of the matter additional qualification referred to in Service Order 8 (5) (b) can not be said to be unreasonable and arbitrary. I do not find anything to hold this provision as arbitrary. 17. Coming to the present case of the petitioner it is to be seen whether the petitioner was unreasonably deprived of the promotion when he became entitled to. I do not find anything to hold this provision as arbitrary. 17. Coming to the present case of the petitioner it is to be seen whether the petitioner was unreasonably deprived of the promotion when he became entitled to. The admitted fact is that before the present provision of Service Order 8 (5) (b) came into force the qualification as mentioned for getting promotion to the post of Joint Director was not necessary. There was no service rule. The Engineers were promoted without having any Degree or Diploma in Town and Country Planning. The petitioner being the seniormost Engineer in the Department, however, was not given promotion to the post of Joint Director without any reason and the matter was kept pending. 18. As held by the Apex Court that in situations where even though a person has no enforceable right yet he is affected or likely to be affected by any order the doctrine of legitimate expectation is applicable. Legitimate expectations are expectation including the expectation which goes beyond enforceable legal right provided they had some reasonable basis. A person may have a legitimate expectation of being treated in certain way by administrative authority even though he may not have any legal right to such promotion. 19. In this case the petitioner being the senior most Engineer having wide experience and holding a Master Degree in Public Health Engineering has a legitimate expectation to be promoted to the post of Joint Director. However, this was denied to the petitioner even though the petitioner became eligible for promotion to the post of Joint Director long before the present Service Order came into force by not considering the case of petitioner and the matter was kept pending and thereafter the present Service Order came into force which debares him from getting promotion. This amount to giving retrospective effect for all practical purposes to the said Service Order 8 (5) (b). In my opinion it is not just, fair and reasonable. The law cannot countenance such state of affairs. Therefore, I am of the view that the petitioner should have been promoted to the post. 20. In view of the above, I hold that Service Order 8 (5) (b) is just, reasonable and proper and therefore, it is not ultra vires as claimed by the petitioner. The law cannot countenance such state of affairs. Therefore, I am of the view that the petitioner should have been promoted to the post. 20. In view of the above, I hold that Service Order 8 (5) (b) is just, reasonable and proper and therefore, it is not ultra vires as claimed by the petitioner. However, this provision in the facts and circumstances of the case as mentioned above is not applicable to the petitioner in respect of his promotion to the post of Joint Director. Accordingly, I direct the respondents to give promotion to the petitioner if he is otherwise qualified and if there is any post vacant. 21. In the entire facts and circumstances of the case I make no order as to costs.