I.A. ANSARI, J.— This is a classic case, which reveals why law insists on making yearly panel against promotional vacancies. Supposing, 'X' and 'Y' are both Junior Engineers in the same department, 'X' being a diploma-holder and 'Y' being degree holder. The qualifying periods for consideration of promotion for degree-holders and diploma-holders are different. In the year 2001, though' Y' is junior to 'X' in the gradation list, he becomes, on account of the fact that he is a degree-holder, eligible for promotion. Despite the fact that there was one vacancy meant for filling up of the same in 2001 by making promotion, no panel for consideration of such promotional vacancy, which arose in 2001 was made. The promotion was considered in the year 2002 and by this time, 'X' also becomes eligible for promotion. If the promotional vacancy arising in 2001 is considered in 2002, 'X' and ' Y', both being eligible for promotion, and 'X', being senior to * Y', would be obviously given the promotion if they enjoy the same merit, but had the promotional vacancy been considered in 2001, it is 'X', who would have been considered for such promotion. Denial of promotion to ' Y' on account of delay in holding DPC is glaringly unjust. Since a writ Court abhors denial of the principles of natural justice, it zealously protects the rights of the aggrieved person and it is for this reason that year-wise panel for consideration of promotional vacancy is insisted upon by Courts. 2. Denial of promotion to ' Y' on account of delay in holding DPC is glaringly unjust. Since a writ Court abhors denial of the principles of natural justice, it zealously protects the rights of the aggrieved person and it is for this reason that year-wise panel for consideration of promotional vacancy is insisted upon by Courts. 2. By making this application under Ar­ticle 226 of the Constitution of India, the pe­titioners, who are serving as Juniors Engineers in the Department of Public Health Engineering and Water Supply, Government of Arunachal Pradesh, have approached this Court seeking issuance of appropriate writ/ writs setting aside and quashing the order, dated 22.05.2001, (Annexure P4 to the writ petition) and order, dated 21.08.2001 (An­nexure P5 to the affidavit-in-reply of the pe­titioners) passed by respondent No. 2 namely, Commissioner and Secretary to the Govern­ment of Arunachal Pradesh, PHE & WS Department, promoting the private respon­dents No.4 to 10 to the posts of Assistant Engineer by allegedly denying lawfully due promotion to the petitioners, and command­ing the State respondents to constitute a De­partmental Promotional Committee(in short, "DPC") afresh for reviewing the cases of pro­motion of the petitioners to the posts of As­sistant Engineer as on 1999 by applying the principles of Next Below Rule. 3. Described in a nut-shell, the case of the petitioners runs as follows:- Both the petitioners are degree holders in Civil Engineering and are presently working as Junior Engineer(in short, JE) in the De­partment of Public Health Engineering and Water Supply, Government of Arunachal Pradesh, the petitioner No. 1 having joined the said post on 29.06.1994 and the peti­tioner No. 2 having joined on 18.07.1994. The post of JE is a feeder post for promotion to the higher post of Technical Assistant and Assistant Engineer. The post of Technical Assistant, however, stands abolished since 1999. The relevant Rules, which govern the conditions of service pertaining to promotional appointment of Assistant Engineer(Civil) (in short, AE) is known as Assistant Engineer (Civil)/ASW Recruitment Rules, 1997(in short, Rules of 1997) (Annexure P/l). These Rules have been framed in exercise of the powers contained in the proviso to Article-309 of the Constitution of India. As per the said Rules, recruitment to the post of AE is made both by direct recruitment and also by making promotion with 50:50 ratio. The Rules of 1997 make a distinction between JEs, who are decree-holders, and JEs, who are di­ploma-holders. As per the said Rules, recruitment to the post of AE is made both by direct recruitment and also by making promotion with 50:50 ratio. The Rules of 1997 make a distinction between JEs, who are decree-holders, and JEs, who are di­ploma-holders. Under the Rules of 1997, JEs, having diploma, become eligible for promotion as AE with 8 years of regular service as JE subject to their passing of departmental examination in accounts, whereas the JEs, holding degree in Civil Engineering, become eligible for promotion, when they complete 5 years of regular service as JE. The Gradation List(Annexure P/5) of JEs(Civil) which was published on 20.5.1999, depicts inter se se­niority of JEs of the Department concerned as on 14.05.1999. As per this gradation list, the petitioners became eligible for being con­sidered for promotions as far back as on 29.6.1999 and 18.7.1999 respectively, whereas the private respondents become eli­gible for promotion thereafter. No DPC was held in the year 1999, when the petitioners had become eligible for promotion. No DPC was held for considering promotion even in the year 2000. In fact, no DPC for consider­ing promotion was held between the year 1996 and the year 2000. However, DPC was held in the year 2001 and on the strength of the recommendations of the DPC, by order, dated 22.5.2001 (Annexure P/4), the private respondent Nos. 4 to 8 were promoted to the posts of AE and, thereafter, by order, dated 21.08.2001 (Annexure P/5), private re­spondents Nos. 9 and 10 were promoted to the posts of AE. Though these promotions have been accorded on the basis of the rec­ommendations made by the DPC held in the year 2001, the fact remains that the DPC con­sidered the question of promotion on the ba­sis of the accumulated vacancies commenc­ing from 1996 to 2001. Had the DPC con­sidered the question of promotion on the ba­sis of promotional vacancies arising each year separately, the petitioners would have been considered for promotion way back in 1999 itself, but because of the consideration of pro­motion, at a time, in the year 2001, against accumulated vacancies, the petitioners were allowed to be superceded by their juniors, namely, private respondents inasmuch as in 2001, the private respondents had acquired eligibility for such promotion, though they were not even within zone of consideration in 1999. The private respondents have been favoured by the authorities concerned and this is obvi­ous from the fact that the private respondent No. 4 was allowed to officiate as AE with effect from 20.01.1998 and he continued in this capacity till 1999, though on 20.01.1998, he had not even qualified for being consid­ered to the post of AE. Feeling aggrieved, the petitioners have approached this Court seeking reliefs as hereinabove indicated. 4. The State respondent Nos. 1,2 and 3 have contested this case by filing their affidavit-in-opposition, the case of these respondents being, briefly stated, thus: when the DPC was held on 09.05.2001, there were only five vacancies and on that date, there were many persons including the private respondents, who were senior to the petitioners and, hence, the case of the petitioner was not considered, because they did not fall within the zone of consideration for such promotion. The promotions to the private respondents have been granted, because they were found eligible for promotion against available vacancies. 5. Private Respondent No. 7 has also contested this case by filing his affidavit-in-opposition, his case being, in brief, thus: Respondent No. 7 joined as JE on 04.08.1992 and he became eligible for promotion on 04.08.2000 after completing the service of requisite period of eight years as a diploma holder. As per the relevant gradation list, the respondent No. 7 is senior to the writ petitioners and when in the year 2001, the DPC, which was constituted for the purpose of considering promotions was held, respondent No. 7 was eligible for promotion and also senior in the cadre of JE to the writ petitioners. He was, therefore, on his own merit found fit for promotion. Hence, his promotion cannot be assailed in this writ petition. 6. As far as private respondent No. 10 is concerned, he has also filed his affidavit-in-opposition, he case being that the distinction between the requisite years of service for a degree-holder and a diploma-holder for the purpose of promotion to the post of AE has been done away with by a Cabinet decision, dated 06.11.2000. As per the present policy of the Government, a Je, Whether a diploma-holder or a degree-holder, is required to put in eight years of regular service as JE for the purpose of becoming eligible for promotion to the post of AE. As per the present policy of the Government, a Je, Whether a diploma-holder or a degree-holder, is required to put in eight years of regular service as JE for the purpose of becoming eligible for promotion to the post of AE. The policy decision taken by the State cabinet was considered in 2002 (1) GLT 165: (Arunchal Pradesh Graduate Junior Engineers Association (APGJEA), represented by its President Shri Tako Nikia-V-State of Arunchal Pradesh and others) and this Court by the judgment and order, dated 13.12.2001, has upheld the Cabinet decision. In this view of the matter, the writ petitioners were not even eligible for promotion to the post of AE, when the DPC considered the case of the respondent No. 10 in 2001. The writ petition is, therefore, without any merit and liable to be dismissed. 7. I have perused the materials on record. I have heard Mr. PK Tiwari, learned counsel for the petitioners, and Mr. B. L. Singh, learned Senior Government Advocate appearing on behalf of the respondents No. 1, 2 and 3. I have also heard Mr. T. Michi, learned counsel for the private respondent No. 10. The remaining respondents, namely, respondents No. 4,5,6,8 and 9 have not contested this case. 8. Presenting the case on behalf of the petitioners, Mr. PK Tiwari has submitted that vacancies arising in promotional posts should be considered within that year and it is illegal to consider cases of promotion on the basis of accumulated promotional vacancies after a number of years have elapsed. In the case at hand, points out Mr. Tiwari, the petitioners had become eligible for promotion in the months of June and July, 1999 and, therefore, their cases ought to have been considered in the year 1999 itself against the available vacancies. Had their case been so considered, the private respondents could not have been considered for promotion. Mr. Tiwari has, however, candidly conceded that the writ petitioners do not have requisite in­formation to show as to how many vacancies in the promotional posts arose in each year, but the fact remains that all accumulated va­cancies were considered in the year 2001 at a time and thereby the petitioners, who were, otherwise, eligible for promotion before the private respondents became so eligible, were unjustly kept excluded from the zone of con­sideration. In support of his submission that promotional vacancies should be considered year-wise, Mr. In support of his submission that promotional vacancies should be considered year-wise, Mr. Tiwari has placed reliance on a decision of the Supreme Court in the case of Union of India-Vs-NR 'Banerjee, re­ported in (1997) 9 SCC 287 . 9. Mr. Tiwari has also submitted that promotion of a government servant should be considered in accordance with the Rules, which were in force on the date when he had fallen within the zone of consideration for promotion and, hence, in the present case also, the petitioners' case for promotion should be considered in accordance with the Rules of 1997 and the subsequent decision taken by the State Cabinet changing the service conditions contained in the Rules of 1997 to the effect that even the degree-holder would require 8 years of regular service as JE cannot be retrospectively applied to the case of the petitioners. In short, Mr. Tiwari's contention is that the writ petitioners' case for promotion must be considered in accordance with the Rules of 1997 de hors the Cabinet decision, in question. 10. As far as the learned Senior Government Advocate is concerned, he acceded that no DPC was held in the 1999 and/or 2000 and that the DPC was held for consideration of promotions, in question, in the year 2001 and the DPC, so constituted, considered the cases of promotion against all the vacancies as available in 2001 and since on that date, the petitioners were junior to the private respondents, their cases for promotion were not considered. The action of the State respondents, according to learned State counsel, is not mala fide. 11. Mr. T. Michi, learned counsel for respondent No. 7 has submitted that as per the relevant gradation list, respondent No. 7 is senior to the petitioners and when his case for promotion was considered in 2001, the respondent No. 7 was eligible for promotion and, hence, the promotion of the respondent No. 7 accorded on his own merit, was wholly justified and may be maintained. 12. Mr. 12. Mr. T. Son, learned counsel, for respondent No. 10, has drawn my attention to the judgment and order, dated 13.12.2001, aforementioned, whereby this Court has upheld the Cabinet decision arrived at on 06.11.2000, whereby the distinction between the JEs with diploma and JE with degree was sought to be removed by laying down that for the purpose of promotion to the post of AE, both diploma-holders as well as degree-holders, working as JE, will become eligible for promotion to the post of AE on completion of 8 years of regular service as JE. Relying on this decision, Mr. Son submits that the petitioners were not even eligible for consideration for promotion in 2001, when the DPC considered cases of promotion. 13. Having heard learned counsel for the parties and upon perusal of the materials on record, what attracts my eyes, most prominently, is that the respondents have completely failed to show year-wise vacancies available in the posts of AE since 1996. In fact, it is not in dispute before me that the DPC considered the cases of promotion to the posts of AE in the year 2001 on the basis of the accumulated vacancies, which had occurred till 2001. The law with regard to determination of the question as to whether a person falls within the zone of consideration or not is well-settled. Reference made, in this regard, by Mr. Tiwari to the case of NR Banerjee(supra) is not misplaced. In this case, the Apex Court has laid down the procedure to be followed for the purpose of preparation of panel for promotion. The observations made by the Apex Court laying down the law on the subject are as follows:- "DPCs should be convened every year, if necessary, on a fixed date i.e. 1st of April or May. In the middle of the para, by way of amendment brought on 13.05.1995, it postulates that very often action for holding DPC meeting is initiated after the vacancy has arisen. This results in undue delay in filling up of vacancies and causes dissatisfaction among those who are eligible for promotion. It may be indicated that regular meeting of DPC should be held every year for each category of posts so that approved select panel is available in advance for making promotions against vacancies arising every year. This results in undue delay in filling up of vacancies and causes dissatisfaction among those who are eligible for promotion. It may be indicated that regular meeting of DPC should be held every year for each category of posts so that approved select panel is available in advance for making promotions against vacancies arising every year. Under para 3.2, the requirement of convening annual meetings of the DPC should be dispensed with only after a certificate has been issued by the appointing authority that there are no vacancies to be filled by promotion or no officers are due for confirmation during the year in question. It would, thus, be seen that DPCs are required to sit every year, regularly on or before 1st April or 1st May of the year to fill up the vacancies likely to arise in the year for being filled up. The required material should be collected in advance and merit list finalized by the appointing authorities and placed before the DPCs for consideration. This requirement can be dispensed with only after a certificate is issued by the appointing authority that there are no vacancies to be filled up by promotion, or that no officers are due for confirmation, during the year in question. *** *** **** Considering from that perspective, the question arises whether the view taken by the Tribunal is justified in law. It is true that filling up of the posts are for clear or anticipated vacancies arising in the year. It is settled law that mere inclusion of one's name in the list does not confer any right on him/her to appointment. It is not incumbent that all posts may be filled up. But the authority must act reasonably, fairly and in public interest and omission thereof should not be arbitrary. In Shankarsan Dashes-Union of lndia (1991) 3 SCC 47 the Constitution Bench had held that inclusion of the name of a candidate in a merit list does not confer any right to be selected unless the relevant recruitment rules so indicate. The State is under no legal duty to fill up all or any of the vacancies even though the State acts in an arbitrary manner. In Babita Prasad-Vs-State of Bihar reported in 1993 Supp. (3) SCC 268 it was held that mere inclusion of one's name in the panel does not confer on him/or any indefeasible right to appointment. The State is under no legal duty to fill up all or any of the vacancies even though the State acts in an arbitrary manner. In Babita Prasad-Vs-State of Bihar reported in 1993 Supp. (3) SCC 268 it was held that mere inclusion of one's name in the panel does not confer on him/or any indefeasible right to appointment. It was further held that the purpose of making a panel was to finalise the list of eligible candidates for appointment. The preparation of the panel should be to the extent of the notified or anticipated vacancies. Unduly wrong panel should not be operated. In Union Territory of Chandigarh-Vs-Dilbagh Singh reported in (1993) 1 SCC 154 it was held that the mere fact that a candidate's name finds a place in the select list as a selected candidate for appointment to a post, does not confer on him/her an indefeasible right to be appointed in such post in the absence of any specific rule entitling him to such appointment. In State of Bihar-Vs-Secretariat Asstt. Successful Examinees Union 1986 reported in (1994) I SCC 126 it was held that a person who is selected and empanelled does not on account of empanelment is, at the best, a condition of eligibility for the purposes of appointment and that by itself does not amount to selection or creation of a vested right to appointment unless relevant rules state to the contrary. However, in the light of the above principles and in the light of the clear rules extracted hereinbefore, it is seen that the exercise of preparation of the panel is undertaken well in advance to fill up the clear vacancies or anticipated vacancies. The preparation and finalisation of the yearly panel, unless duly certified by the appointing authority that no vacancy would arise or no suitable candidate was available, is a mandatory requirement. If the annual panel could not be prepared for any justifiable reason, vear wise panel of all the eligible candidates within the zone of consideration for filling up the vacancies each year should be prepared and appointment made in accordance therewith. If the annual panel could not be prepared for any justifiable reason, vear wise panel of all the eligible candidates within the zone of consideration for filling up the vacancies each year should be prepared and appointment made in accordance therewith. In Nagar Mahapalika-Vs-Vinod Kumar Srivastava reported in (1987) 1 SCC 602 this Court had pointed out with respect to the prescription of the limitation of one year of the waiting list thus: "The reason underlying the limitation of the period of a list for one year is obviously to ensure that other qualified persons are not deprived of their chances of applying for the posts in the succeeding years and being selected for appointment." (Emphasis is added) 14. What clearly transpires from the above observations is that unless the authority concerned certifies that no vacancies arose in a particular year and no suitable candidate is available, it is mandatory to prepare and finalise a yearly panel for promotion and consider the cases of persons, who fall within the zone of consideration for promotion during the year concerned. 15. In the light of the law laid down by the Apex Court in NR Banerjee(supra) there can be no escape from the conclusion that the consideration for promotion in the present case by the DPC was contrary to the Jaw laid down by the Apex Court in the case aforementioned inasmuch as the DPC did not consider the case of promotion in respect of vacancies arising each other separately. 16. As regards the contention of Mr. T. Son that with the decision in APGJEA(supra) distinction between the degree-holders and the diploma-holders has been done away with and the writ petitioners were not even eligible for promotion in 2001, what is essential to point out is that the decision in APGJEA(supra) merely upholds the legality of the Cabinet decision. No Cabinet decision can supercede Rules, far less Recruitment Rules. The Rules of 1997 have been framed, as indicated above, under the proviso to Article 309 and the said Rules cannot be superceded by a mere Cabinet decision. A Cabinet decision, if it is to be implemented, has to be taken into its legal conclusion by converting the same into Rules by way of appropriate notification. There is, admittedly, no such notification amending the Recruitment Rules of 1997. A Cabinet decision, if it is to be implemented, has to be taken into its legal conclusion by converting the same into Rules by way of appropriate notification. There is, admittedly, no such notification amending the Recruitment Rules of 1997. Hence, the mere fact that the Cabinet has decided to remove the distinction between the degree-holders and diploma-holders with regard to the period of service, which a person has put in as JE for becoming eligible for promotion to the post of AE, cannot be treated to have disqualified the persons, who are, otherwise, eligible for promotion under the relevant Recruitment Rules. More so, neither the Cabinet decision nor the Rules can be retrospectively applied, until directed otherwise, to the cases of promotion. Hence, when the question of promotion arises, it has to be considered with reference to the vacancies available on the date, when the vacancies arise, it is the law applicable to such promotion on that date, which has to be applied, while considering the promotion. I am guided to adopt this view from the law laid down in BL Gupta-Vs-MCD, reported in (1998) 9 SCC 223 , which reads as under: "When the statutory Rules had been framed in 1978, the vacancies had to be filled only according to the said Rules......" 17. What logically follows from the above discussion is that the Cabinet decision, which has not yet been translated into Recruitment Rules, cannot be considered either for making a person eligible or making him ineligible for consideration for promotion. The question of promotion to the post of AE in 1999,2000 and 2001 ought to have been considered in accordance with the provisions of the Rules of 1997. When so considered, it becomes transparent that the petitioners No. 1 and 2 became eligible for promotion before the private respondent acquired eligibility for consideration for promotion. However, from cogent reasons, their cases for promotion were not considered and this illegality appears to have taken place on account of the fact that the DPC, as indicated hereinabove, considered all the vacancies, which had accumulated till 2001 together, whereas, it ought to have considered each year's vacancies separately and whoever was eligible for promotion vis-a-vis such promotional vacancies ought to have been considered. I am strengthened in taking this view from the law laid down in Virendra Kr. I am strengthened in taking this view from the law laid down in Virendra Kr. Gupta-Vs-State of Arunachal Pradesh, [WP(C) No. 735 (AP 2001 decided on 2.12.2001], 18. Because of what has been discussed above, I am of the view that the impugned orders promoting the private respondents No. 5 to 10, being contrary to the law laid down by the Apex Court, are without jurisdiction and void ab initio and if such orders are allowed to stand good on record, it will cause serious miscarriage of justice. However, as far as the private respondent No. 4 is concerned, the petitioners have failed to show as to whether he has received regular promotion at all, and if so, when was his case for promotion considered. The promotion of respondent No. 4, if already granted, need not be, therefore, interfered with at this stage and in this writ petition, but it shall remain open to challenge if and when the occasion arises and whoever feels aggrieved by promotion of the respondent No. 4. 19. In the result and for the reasons discussed above, the impugned orders, dated 22.5.2001(Annexure P/4) and dated 21.8.2001 (Annexure P/5) are hereby set aside and quashed and this writ petition is disposed of with direction to the State respondent Nos. 1, 2 and 3 to constitute a DPC afresh for reviewing the cases of promotional of the petitioners along with those persons, who fall within the zone of consideration for such promotion. For the purpose of such consideration, the State-respondents shall prepare year-wise panel depicting number of vacancies available in the promotional vacancies of AEs every year commencing from 1997 till 2001 and consider the cases of the persons concerned in accordance with the panels, which may be so prepared. The whole exercise, so directed, shall be completed within a period of two months from today. During the interim period, the State-respondents may make such interim arrangement as may be required and permissible in law. 20. Considering, however, entire facts and circumstances of the case, the parties are left to bear their respective costs.