Both these Civil Rules raise the common question of law and facts and as such they have been heard together and this common judgment shall dispose of both the Civil Rules. 2. Civil Rule No.2535 of 1992 has been filed by an Association represented by its President. In the Civil Rule as respondent No.6, Assam Animal Husbandry and Veterinary Service Rules Implementation Action Committee, Khanapara, represented by Dr. Gautam Kumar Bordoloi, General Secretary of All Assam Animal Husbandry and Veterinary Degree-Holder Service Association entered as Intervener. In the year 1989 the Government of Assam in exercise of power conferred by proviso (2), Article 309 of the Constitution of India,1950 was pleased to make the rules regulating the recruitment and conditions of service and the said rules came into force from 23.1.89. The said rules were named as the Assam Animal Husbandry and Dairing Service Rules, 1989 (hereinafter called the Rules, 1989). Rule 11 (5) which is relevant for the purpose of these Civil Rules is quoted below: "(5) Notwithstanding anything contained in these rules 25% of the vacancies available in a year shall be filled up by direct recruitment in all the promoted cadre posts." Through this rule came into force nothing was done in pursuance of this rule. Accordingly the Committee of respondent No.6 was formed and a Civil Rule being Civil Rule No. 13 71 of 1991 was filed before this Court with a prayer to issue a writ of Mandamus directing the State of Assam and others to implement Rule 11 (5) of the Rules of 1988. This Court was pleased to dispose of the writ application with a direction, inter alia, as follows : "In the result we dispose of the writ petition with a direction to the respondents to implement the Rule 11(5) read with Rule 21(3) of the above rules within 3 months from today. If any difficulty arises in implementing the rules, the State Government may approach this Court for modification of this order." That was an order by the Division Bench of this Court. If any difficulty arises in implementing the rules, the State Government may approach this Court for modification of this order." That was an order by the Division Bench of this Court. Rule 21(3) of the Rules reads as follows : "A member appointed on promotion in a cadre against a vacancy occuring in a year shall be senior to a member appointed by direct recruitment of that year." Thereafter a review application was filed against this order being Review Application No.37 of 1991 and on 8.6.92 that review application was rejected with the following order : "After hearing the learned counsel for the parties, we are of the opinion that the review petition has no merit inasmuch as by judgment and order dated 24.5.91 we only directed the Government to implement the said Rule 11(5). So long the said rule exists which was framed under Article 309 of the Constitution, the Government is duty bound to implement the above rule. It is not necessary for us to consider whether any person would be effected due to implementation of the said rule and whether such person has to be made a party. We may note here that the validity of the rule has not been questioned before us." In spite of this order nothing was done and as such a contempt petition being Civil Original Contempt Petition No.137 of 1991 was filed and in that contempt petition (his Court noted the grievances of the petitioner as follows : "The petitioner's grievance is that none of the vacancies arose at and after 23.1.89 have been filled up by direct recruitment and the petitioners are deprived of benefits since they could have applied when direct recruitment is made and they have been denied that opportunity." It was further found by this Court as follows : "Having heard the learned counsel of both sides, we are satisfied that a prima facie case for contempt has been made out. Therefore, the contempt proceeding is hereby initiated. The 1st respondent will file a counter affidavit indicating number of vacancies which arose in the cadres referred to in Rule 11 of the rules and the number of such vacancies filled up by direct recruitment with effect from the date from which the rule came into force." 3. The admitted position is that no vacancy was filled up by direct recruitment after the rule was brought into existence. The admitted position is that no vacancy was filled up by direct recruitment after the rule was brought into existence. Rule 11 of the aforesaid Rules provides for promotion and therein Rule 11(5) says that 25% of the promotional post in all the cadres mentioned therein shall be filled up by direct recruitment. -Having faced with this situation, the authority through Assam Public Service Commission on November, 11 }> 1992 made advertisement for filling up certain post through direct recruitment and the post mentioned therein are as follows : (i) 2 posts of Additional Director; (ii) 2 posts of Joint Director; (iii) 19 posts of Deputy Director; (iv) 8 posts of Assistant Director; (v) 2 posts of Sub-Divisional Animal Husbandry and Veterinary Officer. 4. Thereafter these two writ applications were filed challenging the legality and validity of Rule 11(5) as well as the advertisement issued for filling up 19 posts of Deputy Director. In this writ application we are not concerned with the other posts as that is not the subject matter in issue and that was not even urged. Two grounds are urged : (i) Rule 11(5) should be declared as arbitrary, unreasonable and the same is highly discriminatory; (ii) That it is not understood how 19 posts of Deputy Director can be filled up by promotion and it is urged that in support of it there is no material. 5. I have heard Shri AK Bhattacharyya, learned Advocate for the writ -1 petitioner in Civil Rule No. 104 of 1993. That writ application has been filed by one person Dr. Gopal Baruah, but his contentions are same as in other writ application. I have also heard Shri P Pathak. learned Advocate for the writ petitioner in Civil Rule No.2535 of 1992 and Shri AK Phukan, learned Advocate for respondent No.6, the intervener. Shri SN Bhuyan, learned Advocate General of Assam argued regarding the validity of the Rules. An affidavit-in-opposition has been filed on behalf of respondent No.6 and another affidavit-in-opposition has been filed on behalf of respondent Nos.l to 5. Smti Hazarika also produced the records. 6. Let us take up first the second contention as to whether there are materials to show that these 19 posts are the backlogs. In support of it there is a letter written by the Director of the Department. Smti Hazarika also produced the records. 6. Let us take up first the second contention as to whether there are materials to show that these 19 posts are the backlogs. In support of it there is a letter written by the Director of the Department. That letter is quoted below : xxxx  xxxxx xxxx The Annexure to it shows the number of posts available and Annexure IV shows the posts available under provisions of 25% direct recruitment. Annexure 1 to VI letters show the statement saying the vacancies from 1989 to 1992, that is, up to 31.3.92 and the categories of posts are Additional Director, Joint Director, Deputy Director, Assistant Director and SDVO. Annexure II shows the backlog of different categories of posts considering 25% of vacancies for direct recruitment and regarding the posts of Deputy Director, it is as follows : 1989 - 8.25 1990 - 9.25 1991 - 2.50 1992- 5.75 Total - 25.75 Annexure IV shows the number of posts to be filled up under provisions of 25% direct recruitment. Annexure V is the classification prescribed for the different posts. This letter of the Director was put up before the Secretary of the department vide a note available in the record and that note is quoted below : xxxx  xxxxx xxxx 7. So from these materials it is crystal clear that 19 posts of Deputy Director were available for direct recruitment and accordingly the advertisement which was made does not go beyond the 25% of the vacancies available by way of promotion. So the argument advanced that there was no materials to show that the 19 vacancies existed to fill up backlog is not correct and I find that the advertisement which was made by the Assam Public Service Commission squarely comes within 25% vacancies available for direct recruitment. 8. The next question is regarding the validity of the rule. The rule has already been quoted above. A lot of arguments was made on behalf of the petitioners that the Government is contemplating to amend that rule. But till the rule is amended, the rule will hold the field in the statutory book and authority is bound to implement it. The Government can not shirk its responsibility from doing so. The argument was advanced that the age of 45 years fixed for direct recruitment will be prejudicial to the persons already in service. But till the rule is amended, the rule will hold the field in the statutory book and authority is bound to implement it. The Government can not shirk its responsibility from doing so. The argument was advanced that the age of 45 years fixed for direct recruitment will be prejudicial to the persons already in service. But Rule 7(3) it self gives the power to the authority to relax the age limit. The further argument that academic qualification has not been laid down is also not correct inasmuch as in Schedule 2 as mentioned in Rule 8, the qualifications as on today are prescribed and the Governor has the power to prescribe other qualifications from time to time. Shri Bhattacharyya makes argument as follows : (i) Rule 11(5) is violative of Articles 14 and 16 of the Constitution of India,1950, (ii) It is detrimental to promotional avenue of the petitioner, (iii) It is violative of the doctrine of legitimate expectation. 9. A person cannot claim by way of right to be promoted. He can only claim to be considered for promotion. Even if the Rule 11(5) is valid, the petitioner has a chance to be considered for 75% of the posts available for promotion in a particular year. So the second contention of Shri Bhattacharyya that it is detrimental to promotional avenue of the petitioner is not tenable. Shri Bhattacharyya in support of his contention relies on a decision reported in AIR 1985 SC1033 (Raghunath Prasad Singh vs. Secretary Home, Bihar) wherein the Supreme Court has pointed out as follows : "Reasonable promotional opportunities should be available in every wing of public service that generates efficiency in service and fosters the appropriate attitude to Court for achieving excellence in service. In the absence of promotional prospect the service is bound to disgenerate and stagnation kills the desire to serve properly." This case does not help the petitioner inasmuch as in the instant case 75% . of the posts are available to the petitioner by way of promotion. It can not be said that the rule has not made or preserved the benefit of promotion for the petitioner. In the case before the Apex Court there was no promotional avenue. of the posts are available to the petitioner by way of promotion. It can not be said that the rule has not made or preserved the benefit of promotion for the petitioner. In the case before the Apex Court there was no promotional avenue. Promotional avenue was available only to the regular police personnel and in was in that context that the Apex Court directed the State of Bihar to provide at least two promotional opportunities to the officials of the State police within 6 months from the date of judgment by appropriate amendment of the rules. 10. The next case relied by Shri Bhattacharyya on this point is AIR 1991 SC 1406 (AN Sehgal & others vs. Raje Ram Sheoram & others) wherein paragraph 17 the law has been laid down as follows : "17. With a view to have efficient and dedicated services accountable to proper implementation of Government policies, it is open and is constitutionally permissible for the State, to infuse into the services, both talented fresh blood imbued with constitutional commitments, enthusiasm, drive and initiative by direct recruitment, blended with matured wealth of experience from the subordinate services. It is permissible to constitute an integrated service of persons recruited from two or more sources, namely, direct recruitment, promotion from subordinate service or transfer from other services. Promote from subordinate generally would get few chances of promotion to higher echelons of services. Avenues and facilities for promotion to the higher services to the less privileged members of the subordinate service would inculcate in them dedication to excel their latent capabilities to man the cadre posts. Talent is not the privilege of few but equal avenues made available would explore common man's capabilities overcoming environmental adversity and open up full opportunities to develop one's capabilities to shoulder higher responsibilities without succumbing to despondence. Equally talented young men/ women of great promise would enter into service by direct recruitment when chances of promotions are attractive. The aspiration to reach higher echelons of service would thus enthuse a member to dedicate honestly and diligently to exhibit competence, straight forwardness with missionary zeal exercising effective control * and supervision in the implementation of the programmes. Equally talented young men/ women of great promise would enter into service by direct recruitment when chances of promotions are attractive. The aspiration to reach higher echelons of service would thus enthuse a member to dedicate honestly and diligently to exhibit competence, straight forwardness with missionary zeal exercising effective control * and supervision in the implementation of the programmes. The chances of promotion would also enable a promotee to imbue involvement in the performance of the duties; obviate frustration and eliminate proclivity to corrupt practices lest one would tend to become corrupt, sloven and mediocre and a dead wood. In other words, equal opportunity would harness the human resources to augment the efficiency of the service and undue emphasis on either would upset the scales of equality germinating the seeds of degeneration." This case also does not help the petitioner to accept the argument of Shri Bhattacharyya rather it helps the respondents inasmuch as the Supreme Court in paragraph 16 has pointed out the law as follws : "16. In VB Badami vs. State of Mysore, (1976) 1 SCR 815 ( AIR 1980 SC 1561 ), dealing with the problem arising out of quota rule between promotees, this Court observed that (at page 1565 of AIR) : "In working out the quota rule, these principles are generally followed. First, where rules prescribed quota between direct recruits and promotees, confirmation or substantive appointment can only be in respect of clear vacancies in the permanent strength of the cadre. Second, confirmed persons are senior to those who are officiating. Third, as between persons appointed in officiating capacity, seniority is to be counted on the length of continuous service. Fourth, direct recruitment is possible only by competitive examination which is prescribed procedure under the rules. In promotional vacancies, the promotion is either by selection or on the principle of seniority-cum-merit, a promotion could be made in respect of a temporary post or for a specified period but a direct recruitment has generally to be made only in respect of clear permanent vacancy either existing or anticipated to arise at or about the period of probation to be expected to be completed. Fifth, if promotions are made to vacancies in excess of the promotional quota, the promotions may not be totally illegal but would be irregular. The promotees cannot claim any right to hold the promotional posts unless the vacancies fall within their quota. Fifth, if promotions are made to vacancies in excess of the promotional quota, the promotions may not be totally illegal but would be irregular. The promotees cannot claim any right to hold the promotional posts unless the vacancies fall within their quota. If the promotees occupy any vacancies which are within the quota of direct recruits, when direct recruitment takes place the direct recruits will occupy vacancies within their quota. Promotees whom are occupying the vacancies within the quota of direct recruits will either be reverted or they will be absorbed in the vacancies within their quota in the facts and circumstances of a case." 11. Regarding legitimate expectation Shri Bhattacharjee argues that when the petitioners entered the service, the promotional posts were available to the petitioners and by making provisions of direct recruitment that has been curtailed and this is unreasonable. In this connection he relies on (1995) 2 SCC 326 (UP' A was Evam Vikas Parishad vs. Cyan Devi (Dead) By Lrs. & others) and he relies in paragraph 41. A portion of paragraph 41 which is quoted below: "41. The expression which is said to have originated from the judgment of Lord Denning in Schmidt vs. Secretary 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 expectations in this context are capable of including expectations which go beyond enforceable legal rights, 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." Fair procedure and just treatment is the core of our jurisprudence. No one should suffer for omission in law or technicalities in rules." I do not understand how this law can help the petitioner inasmuch as legitimate expectation must be something based upon some statement or undertaking by or on behalf of the authority. As indicated above the right to get promotion is not an enforceable right and in that view of the matter there can not be a legitimate expectation on that score and the question of enforcing it or protecting it does not arise. As indicated above the right to get promotion is not an enforceable right and in that view of the matter there can not be a legitimate expectation on that score and the question of enforcing it or protecting it does not arise. The petitioners have not been denied the just treatment or they are not exposed to some unfair procedure. So this case is of no help to the petitioner. 12. The next case relied on by Shri Bhattacharyya is (1994) 5 SCC 450 (Union of India & others vs. Tushar Ranjan Mohanty & others) and he relied on paragraph 14, wherein the Supreme Court pointed out that: "14. Power to make rules under Article 309 of the Constitution of India,1950 can not be used to justify the arbitrary, illegal or unconstitutional acts of the executive. When a person is deprived of an accrued right vested in it under a statute or under the Constitution and he successfully challenges the same in the Court of law, the Legislature cannot render the said right and the relief obtained nugatory by enacting retrospective legislation." The facts of that case was that the respondents were members of the Indian Statistical Service. Respondent No. 1 belonged to the general category, whereas respondent Nos.2 to 9 belonged to Scheduled Castes. Respondent Nos.2 to 9 were promoted from Grade IV to Grade III against the vacancies for Scheduled Castes and Scheduled Tribes. The respondent No. 1 being senior to respondent Nos.2 to 9 in the Grade, successfully impugned his supersession before the Central Administrative Tribunal on the ground that reservation in respect of appointments by promotion was not permitted under the Rules. Necessary relief was granted to respondent No. 1 in respect of promotion and restoring the seniority of respondent No.l over respondent Nos. 2 to 9. Subsequently Rule 13 was amended and it was made retrospective. By the amendment of the rules the Union of India wanted to quash the Tribunal's decision in respect of the promotion of respondent No.l. It was in that context that the Supreme Court pomted out that Rule 13 to the extent it has been made operative retrospectively is unreasonable, arbitrary and as such violative of Articles 14 and 16 of the Constitution of India,1950. The retrospective portion of the Rules was struck down. So this case does not help the petitioner. The retrospective portion of the Rules was struck down. So this case does not help the petitioner. The learned Advocate General, therefore, has rightly contended that the power of me authority to make rule under Article 309 cannot be questioned and the rule on the face of it is not at all arbitrary nor ' capricious nor it is violative of Articles 14 and 16 of the Constitution of India,1950.. The authority who is the best Judge how to maintain the efficiency in the department and how to develop the department and it was in that context that the rule was framed to bring better talent to the department by way of direct recruitment and he argued that the rule is not invalid on any account and it does not suffer from any infirmity. Mr. Phukan advanced argument and in support of his contention relies on two decisions : (1) (1993) 2 SCC 340 (P. Murugesan & others vs. State of Tamil Nadu & others) where the Supreme Court pointed out that rule making power under proviso to Article 309 is legislative in nature as well as general test to determine constitutionality of any provision of such Rules is whether Legislature is competent to enact such provision. In paragraph 11 and 14 the Supreme Court has pointed out, inter alia as follows : "We cannot fail to take note of the fact that right from 1974 i.e., since the decision of the Constitution Bench in Triloki Nath Khosa this Court has been holding uniformly that even where direct recruits and promotees are integrated into a common class, they could for purposes of promotion to the higher cadre be classified on the basis of educational qualification." 13. The next case relied on by Shri Phukan is (1994) 6 SCC 282 (TR Kothandaraman & others vs. Tamil Nadu Water Supply and Drainage BD & others) where the Supreme Court in paragraphs 16,22 and 23 has laid down as follows: "16. From what has been stated above, the following legal propositions emerge regarding educational qualification being a basis of classification relating to promotion in public service; (1) Higher educational qualification is a permissible basis of classification, acceptability of which will depend on the facts and circumstances of each case. (2) Higher educational qualification can be the basis not only for being the promotion, but also for restricting the scope of promotion. (2) Higher educational qualification can be the basis not only for being the promotion, but also for restricting the scope of promotion. (3) Restriction placed cannot however go to the extent of seriously jeopardising the changes of promotion. To decide this, the extent of restriction shall have also to be looked into to ascertain whether it is reasonable. Reasons for this are being indicated later. 22 The aforesaid shows that higher educational qualification has relevance in so far as the holding of higher promotional post is concerned, in view of the nature of the functions and duties attached to that post. The classification has, therefore, nexus with the object to be achieved. This apart, history also supports the differentiation sought to be made by the rule in question. We, therefore, uphold the classification as valid. 23. The next question to be examined is about the extent of the preference given to the degree holders. At this stage, we may first give our reasons as to why this aspect is amenable to examination. The rule making authority having made a Diploma holder eligible for promotion, it follows that a Diploma holder does not suffer from such infirmity as to make him totally unfit for holding the higher post. If that is so, question is whether the ratio could be made so inequitable as to mock at the guarantee of equality ? The right which has been conferred by one hand cannot be taken-away by another, nor clci the right be converted to a husk. It must continue to be a meaningful right. Too much emphasis on higher education may even cause dent to cause social justice, as it would be the poorer section of the seen which would be deprived of its legitimate expectations. The preference given to the degree holders would at the same time, give fillip to the desire to receive higher education, as such persons would always be favourably placed as compared to the lesser educated ones. A harmony would thus be struck by maintaining reasonableness in the ratio, between the call of social justice and the need for higher education, without in any way jeopardising the principal object of classification. But then no particular ratio can be spelt out which would satisfy these requirements; the reasonableness of the ratio shall depend on facts of each case." 14. But then no particular ratio can be spelt out which would satisfy these requirements; the reasonableness of the ratio shall depend on facts of each case." 14. In the instant case the promotional avenue has been kept open for 75% of the posts. So it does not suffer from the vice of inequality. Accordingly there is no merit in these two writ applications and they are dismissed. The stay order passed on 24.11.92 asking Public Service Commission not to announce the result of the interview shall stand vacated. The Public Service Commission shall announce the result and the Government in terms of the recommendation of the Public Service Commission shall give appointment to the persons recommended. 14A. I leave the parties to bear their own costs.