JUDGMENT B.K. Sharma, J. 1. The four writ petitions by and between the same parties involving more or less same set of facts and law and having nexus to each other were heard analogously and are being disposed of by this common judgment and order. 2. The facts material for the purpose of resolving the controversy raised in the writ petitions are as follows: WP(C) No. 10,110/2003 3. This writ petition has been filed by four Petitioners seeking for a writ of mandamus by way of direction to the Respondents not to give effect to Rule 11(6)(i) of the Assam Transport Service Rules, 2003 and also for appropriate writ, order or direction declaring Rule 11(6)(i) of the said rules as arbitrary, unreasonable, irrational and discriminatory striking down the same. 4. The Petitioners were appointed as Enforcement Chequres (in short EC) in the department of transport pursuant to their selection for the same in terms of advertisement issued on 23.7.70. In the advertisement it was stated that the designation might be changed to that of Assistant Enforcement Inspector (in short AEI). It will be pertinent to mention here that at the time of appointment of the Petitioners there was no service rule in the department. Subsequently the Assam Transport Service Rules, 1983 was framed and promulgated. However, in this Rule also the cadres of EC and AEI were not included. The only cadres included in the Rules of 1983 are as follows: (a) Deputy Commissioner (b) Assistant Commissioner (c) District Transport Officer, including Transport Officer (Pool) (d) Motor Vehicle Inspector (e) Enforcement Inspector 5. The posts in the lowest rung of the aforesaid cadres i.e. Enforcement Inspector were to be filled up by direct recruitment which naturally excluded the incumbents in the cadres of EC/AEI from the purview of promotion to the said cadre. A writ petition being Civil Rule No. 1697/1996 was filed by the Petitioners and other such employees of the transport department making a grievance against their such exclusion from further advancement in their service career. The writ petition was disposed of by judgment and order dated 28.7.1996 directing the Respondents therein to consider the case of the Petitioners and to provide promotional avenue. Subsequently Anr. writ petition being WP(C) No. 3233/2000 was also filed by Anr. The writ petition was disposed of by judgment and order dated 28.7.1996 directing the Respondents therein to consider the case of the Petitioners and to provide promotional avenue. Subsequently Anr. writ petition being WP(C) No. 3233/2000 was also filed by Anr. set of similarly situated employees seeking similar reliefs which was also disposed of by judgment and order dated 22.6.2000 providing consideration of the case of the Petitioners provided they come within the promotion zone under the provisions of the rules. 6. According to the Petitioners, during the period from 1970 to 1998, there was only one cadre EC and AEI. The cadre of EC was subsequently given the nomenclature AEI. Although, the cadre was known by two different names i.e. EC and AEI, but the scale of pay and nature of duties were the same for both the posts. Thus the Petitioners claim that for all practical purposes they have been serving as AEI from their initial date of appointment way back in 1970. It will be pertinent to mention here that the Petitioners were redesignated as AEI in the year 1994. 7. Further stand in the writ petition is that as per the provisions of the Assam Services (Revision of Pay) Rules, 1988 the cadres of EC and AEI were separated and distinguished for the first time. The revised pay scales of EC and AEI as per the said rules of 1998 were as follows: Rs. 2890/- to Rs. 5725/- (for EC) Rs. 3010/- to Rs. 6075/- (for AEI) 8. According to the Petitioners, after the aforesaid judgment and orders dated 28.6.97 and 22.6.2000 respectively, the Petitioners took up the matter with the Respondents to provide them with promotional avenues and the Respondents all along assured them of doing the needful by way of bringing necessary amendments in the aforesaid rules of 1983. 9. By a notification dated 7.10.2003 issued by the Government of Assam in the transport department published in the Assam Gazette Extra ordinary dated 10.10.2003, a set of rule namely the Assam Transport Service Rules, 2003 was promulgated in exercise of the power conferred by the proviso to Article 309 of the Constitution of India. The cadres of EC and AEI were en-cadred for the first time and both the cadres were classified as Class-III 10. The cadres of EC and AEI were en-cadred for the first time and both the cadres were classified as Class-III 10. Rule 5 of the aforesaid rules of 2003 lays down the procedure and method of recruitment to the transport service, as per which 75% of the posts in the cadre of AEI shall be filled up by direct recruitment in accordance with Rule 7, 8,9 and 10 and remaining 25% of the posts in the cadre shall be filled up by promotion from amongst the incumbents in the cadre of EC in accordance with Rules, 11, 14, 15, 16, 17 and 18. So far as the cadre of EC is concerned, the rules provide that the posts shall be filled up by direct recruitment. On the other hand, the posts of Enforcement Inspector are to be filled up by 50% by direct recruitment; 25% by promotion from ministerial cadres and 25% by promotion from the cadre of AEI. 11. Rule 7 of the rules lays down the criteria of qualification and age in terms of which, a candidate for recruitment in the service shall be within the age limit, as shown below against the respective cadres, on the first day of the year of advertisement with relaxation in respect of candidates belonging to reserved categories: Minimum Maximum i. District transport officer 21 36 years ii. District transport officer (Pool) 21 36 years iii. Principal, drivers and Conductors, Training Schools 21 36 years iv. Motor Vehicle Inspectors 21 36 years v. Enforcement Inspectors 21 36 years vi. Assistant Enforcement Inspector 18 36 years vii. Enforcement Cheques 18 36 years 12. Rule 11 of the rules lays down the procedure for recruitment by promotion. Rule 11(6)(i) inter alia provides that a member of the service in the cadre of AEI who has not completed 50 years of age and rendered 10 years of service in the cadre shall become illegible for promotion to the cadre of Enforcement Inspector (in short EI), which according to the Petitioner is highly discriminatory and seeks to create a classification amongst the AEI, one below 50 years of age and the other above 50 years of age. While the incumbents above 50 years of age are denied promotion, the incumbents below 50 years of age are provided with the scope of promotion, which according to the Petitioners is based on no intelligible differentia and is without any reasonable nexus with any object sought to be achieved. 13. It is in the above backdrop, the Petitioners have filed the writ petition seeking declaration of Rule 11(6)(i) of the aforesaid rules to be ultra-vires, unconstitutional, discriminatory and illegal. According to the Petitioners, the upper age limit for the post of AEI having been prescribed as 36 years, an incumbent entering the service at the age of 36 years would be eligible for promotion upon rendering 10 years of service meaning thereby that he would be eligible for such consideration only at the age of 46 years. If he does not earn any promotion for 4 years, he would be debarred for any such promotion in view of the aforesaid age bar. Similarly, an EC promoted as AEI, by the time he completes 10 years of service as AEI, would be ineligible for further promotion because of such age bar. As per the eligibility criteria, an EC will be entitled to promotion as AEI only on completion of 10 years of service as EC. Thus, after rendering 10 years of service in each cadre i.e. EC and AEI, by the time an incumbent earns the eligibility, there is every likelihood of crossing the age limit of 50 years, the Petitioners assert. WP(C) No. 182/2004 14. This writ petition has been filed by the private Respondents in the aforesaid WP(C) No. 10,110/2003 making a grievance against the alleged inaction on the part of the official Respondents towards completion of the process for promotion of the AEIs to the next higher rank of EI as per the aforesaid rules of 2003. 15. As per the facts narrated in the writ petition, the Petitioners are placed at serial No. 1 to 5 in the gradation list of AEI published by notification dated 31.7.2002. Being aggrieved by such fixation of seniority, the Petitioners in the aforesaid WP(C) No. 10,110/2003, who were shown juniors, had approached this Court by filing WP(C) No. 9668/2003. The writ application was disposed of by order dated 28.11.2003 providing disposal of the representation of the Petitioners. Being aggrieved by such fixation of seniority, the Petitioners in the aforesaid WP(C) No. 10,110/2003, who were shown juniors, had approached this Court by filing WP(C) No. 9668/2003. The writ application was disposed of by order dated 28.11.2003 providing disposal of the representation of the Petitioners. It will be pertinent to mention here that in both the writ petitions, interim orders were passed staying promotion to the cadre of EI. According to the Petitioners, the representation which was directed to be disposed of by the aforesaid order was not so disposed of by the official Respondents and in the process, the Petitioners had to suffer by not getting their promotion. WP(C) No. 365/2004 16. This writ petition has been filed by the Petitioners in the first writ petition i.e. WP(C) No. 10,110/2003 praying for setting aside and quashing of the order 13.11.2003, by which the 5 Petitioners in WP(C) No. 182/2004 were stated to have completed 10 years of service as AEI earning eligibility for promotion as EI. The Petitioners reiterating their stand in their first writ petition have urged that they are senior to the said 5 Petitioners. According to them, the aforesaid 5 Petitioners in WP(C) No. 182/2004 were appointed on ad hoc basis as AEI by order dated 13.11.1992 without any advertisement and selection. However, their services were regularized by an order dated 25.4.1994. Their stand is, even if their such regularization is held to be valid, they are entitled to count their seniority only with effect 25.4.1994 and not from the date when they were appointed on ad hoc basis. On the other hand even leaving aside the claim of the Petitioners that they are entitled to count their seniority from 1970 when they were first appointed as EC, even from the date of their re-designation by order dated 7.2.1994, such re-designation being prior in point of time than the date of regularization of the services of the above 5 Petitioners i.e. 25.4.1994, they are senior to them and thus the impugned communication dated 13.11.2003 projecting the said 5 Petitioners to be the seniormost AEIs above the Petitioners, could not have been issued, they assert. WP(C) No. 6053/2004 17. WP(C) No. 6053/2004 17. The cause of action for filing this writ petition had arisen for the Petitioners in WP(C) No. 10,110/2003 and WP(C) No. 365/2004 against the State as Well as the private Respondents who are the Petitioners in WP(C) No. 182/2004, when as per the direction for disposal of representation against the gradation list, the representation was disposed of by order dated 15.6.2004 maintaining the seniority of the Petitioners in the second writ petition i.e. No. WP(C) No. 182/2004 above the Petitioners in other three writ petitions. In this writ petition also, the Petitioners have reiterated their stand in their earlier two writ petitions. Respective claims which have emerged from the stand of the Petitioners in the writ petitions: (A) Plea of the Petitioners in WP(C) No. 10,110/2003; WP(C) No. 365/2004 and WP(C) No. 6053/2004 (hereinafter described as Group-A Petitioners) (i) They are entitled to count their seniority from 1970 when they were first appointed as EC. Even if this claim is not accepted, they are entitled to count their seniority from the date of their re-designation as AEI by order dated 7.2.1994. On the other hand, the 5 Petitioners in WP(C) No. 182/2004 having been regularized in their services as AEI by order dated 25.4.1994, they are entitled to count their seniority from that date only. Be it stated here that by order dated 25.4.1994, the services of 3 of the said 5 Petitioners were regularized from the date of their joining. Their such date of joining the service was pursuant to their appointment by notification dated 13.11.1992 stating the same to be temporary appointment on ad hoc basis with specific condition that such temporary appointment would not entail any pre-emptive right for regularization of services. (ii) The criteria of age bar as per Rule 11(6)(i) of the aforesaid rules of 2003 is to be struck down being unconstitutional. (B) Plea of the Petitioners in WP(C) No. 182/2004 (hereinafter referred to as Group-B Petitioners). (i) They are undoubtedly senior to the Petitioners in the above three writ petitions, they having been appointed as AEI in the year 1992 (13.11.1992), pursuant to their selection for the post. In any case their services having been regularized from the date of their joining by order dated 25.4.1994, they are senior to the Petitioners in the other three writ petitions who were upgraded as AEI only with effect from 7.2.1994. In any case their services having been regularized from the date of their joining by order dated 25.4.1994, they are senior to the Petitioners in the other three writ petitions who were upgraded as AEI only with effect from 7.2.1994. They are not entitled to count their seniority from 1970 inasmuch as prior to their re-designation as AEI, they were never in the cadre of AEI but were in the lower cadre of EC. (ii) As regards the challenge to Rule 11(6)(i) of the rules of 2003, they also support the case of the Petitioners in the other three writ petitions. 18. I have heard Mr. K.N. Choudhury, learned Sr. Counsel, assisted by Mr. S. Shyam, learned Counsel for the Petitioners in the above three writ petitions. I have also heard Mr. N. Dutta, learned Sr. Counsel, assisted by Mr. S. Kataky, learned Counsel for the Petitioners in WP(C) No. 182/2004 and Ms. R. Chakraborty, learned Govt. Advocate, Assam, made her submissions. Mr. G.N. Sahewalla, learned Sr. Counsel assisted by Mr. P. Bora, learned Advocate made submissions on behalf of the Transport Department 19. Mr. Choudhury, learned Counsel for the Group-A Petitioners made the following submissions: (i) The very appointment of the Petitioners in the year 1970 clearly reflected that their such appointment as EC might be changed to AEI. Thus there was no distinction between the two posts and they were one and the same. (ii)The scale of pay for both the posts were one and the same till 1998 when the pay scales were further revised and the AEIs were given a higher pay scale. (iii) The re-designation of the post of EC to that of AEI by notification dated 7.2.1994 will relate back to the initial date of appointment of the Petitioners and thus they are entitled to count their seniority from their initial date of appointment. (iv) In absence of any service rule, length of service being the determining factor towards fixation of seniority, the Petitioners are entitled to count their seniority from their initial date of appointment. (vi) Referring to the Assam Transport Service (Recruitment and Promotion to the posts of AEI) Orders 1990, which was promulgated much after the appointment of the Petitioners, Mr. (iv) In absence of any service rule, length of service being the determining factor towards fixation of seniority, the Petitioners are entitled to count their seniority from their initial date of appointment. (vi) Referring to the Assam Transport Service (Recruitment and Promotion to the posts of AEI) Orders 1990, which was promulgated much after the appointment of the Petitioners, Mr. Choudhury submitted that the Petitioners in Group-B batch having been appointed dehors the rules on ad hoc basis in the year 1992 (13.11.1992) and their appointment order itself having indicated that they were appointed purely on temporary and ad hoc basis without any pre-emptive right for regularization of their services, they cannot claim their seniority from the date of such appointment upon regularization of their services by order dated 25.4.1994, 11.5.1994 and 19.11.2003 (Annexure-4 series to WP(C) No. 6053/2004). (vii) Regularization being not a mode of recruitment and there being no provision either in the aforesaid service order or in the rules, the services of the Petitioners in the B group could not have been regularized and that too from the date of their joining. Even otherwise also the fortuitous period of service cannot be counted towards seniority. (viii) Rule 11(6)(i) of the rules of 2003 laying down the eligibility criteria of below 50 years of age is without any rational basis and the same cannot take away the accrued right of the Petitioners for consideration for promotion (ix) Mr. Choudhury in support of his arguments placed reliance on the following decisions: 1992 Supp (1) SCC 272 (Keshav Chandra Joshi v. Union of India and Ors.) 1995 Supp. (1) SCC 572 (S. Sreenivasa Reddy and Ors. V. Govt. of A.P. and Ors.) AIR 1988 SC 162 (State of U.P. v. Rafiquddin and Ors.) 20. Mr. G.N. Sahewalla, learned Sr. Counsel appearing on behalf of the Transport Department submitted that the posts of EC and AEI were never one and the same. Referring to Annexure-2 to the Miscellaneous Application (M.C. No. 2157/2004) filed by the Group-B Petitioners in WP(C) No. 10,110/2003, Mr. Sahewalla submitted that for the first time 12 posts of AEI were created in the year 1984 and the same was communicated to the Accountant General, Assam by the Department by its communication dated 1.9.1984. Referring to Annexure-2 to the Miscellaneous Application (M.C. No. 2157/2004) filed by the Group-B Petitioners in WP(C) No. 10,110/2003, Mr. Sahewalla submitted that for the first time 12 posts of AEI were created in the year 1984 and the same was communicated to the Accountant General, Assam by the Department by its communication dated 1.9.1984. He submitted that the Group-B Petitioners having been appointed as AEI in 1992 prior to the encadering of the Group-A Petitioners in the cadre of AEI, there was nothing wrong in fixing the seniority of the Group-B Petitioners over the Group-A Petitioners. He also referred to Annexure-3 order of promotion dated 17.12.1990 annexed to the said Misc. Case by which 6 ECs were promoted as AEIs. Thus he submitted that the plea of the Group-A Petitioners that all throughout from 1970 to 1998, there was no distinction between EC and AEI and that they formed one and the same cadre is not tenable. 21. Mr. N. Dutta, learned Sr. Counsel supporting the fixation of seniority of the Petitioners in Group-B over the Petitioners in Group-A reiterated the aforesaid submissions made by Mr. Sahewalla. He submitted that merely because in the order of appointment of the Group-A Petitioners it was indicated that their designation might get changed from EC to AEI without any follow up action cannot bestow any right on the said Petitioners to count their seniority from 1970. He submitted that there was never any equation of the two posts i.e. EC and AEI and their pay scales were all along different, ever since the cadre of AEI was created in 1984. Referring to the promotion of 6 ECs to the cadre of AEI affected in 1990, he submitted that the Petitioners never objected to the same. He also placed reliance on the decisions of this Court in the writ petition being C.R. No. 1408/1990 and the pleadings thereof. In the said proceeding Sri Balen Chandra Kalita who is also one of the Petitioners in Group-A, was one of the Petitioners and the claim made therein was for promotion as AEI. According to him in the said proceeding the Petitioners also made a challenge to the appointment of the Petitioners in Group-B. The writ petition was dismissed. Thus according to him the issue raised in the present proceeding is no longer res-integra. 22. Mr. Sahewalla, learned Sr. According to him in the said proceeding the Petitioners also made a challenge to the appointment of the Petitioners in Group-B. The writ petition was dismissed. Thus according to him the issue raised in the present proceeding is no longer res-integra. 22. Mr. Sahewalla, learned Sr. Counsel representing the State of Assam inthe Transport Department also made submissions in respect of the challenge made to Rule 11(6)(i) of the rules. He defended the rules and submitted that having regard to the nature of duties involved in both the posts of AEI and EI, the legislature thought it prudent to fix the upper age limit. He submitted that such fixation of age limit has a rational basis and the Petitioners cannot project the same to be a case of discrimination. He submitted that the Petitioners in both the groups would be entitled to be considered for promotion. 23. Respective replies on behalf of both the groups were made by Mr. S. Shyam and Mr. S. Kataky. Both of them reiterated the submissions made by Mr. K.N. Chouhdury and Mr. N. Dutta, learned Sr. Counsel. Mr. Shyam placing reliance on the affidavit-in-reply filed in WP(C) No. 365/2004 submitted that the earlier proceeding by way of C.R. No. 1408/1990 was in respect of a cause espoused by the All Assam Enforcement Transport Employees Association and the involvement of Sri Balen Chandra Kalita, one of the Petitioners in Group-A was in his capacity as the Secretary of the Association. He further submitted that the issues involved in the said proceeding and the present proceeding are completely different. He submitted that in the earlier proceeding, the Petitioners in Group-B were not even parties and no relief was claimed against them. 24. Mr. Kataky, learned Counsel for the Petitioners in Group-B extensively referred to the pleadings in the earlier proceeding i.e. C.R. No. 1408/1990 and the judgment thereof and submitted in tune with the submissions made by his senior Mr. Dutta that the issue is no longer res-integra and has been settled in the said proceeding. He submitted that the petitioners in Group-B were appointed pursuant to regular selection comprising of both written and viva-voce test and the expression "adhoc" used in the order of appointment was without any basis and the official Respondents realizing the same, regularized the services of the Petitioners from the date of their joining. He submitted that the petitioners in Group-B were appointed pursuant to regular selection comprising of both written and viva-voce test and the expression "adhoc" used in the order of appointment was without any basis and the official Respondents realizing the same, regularized the services of the Petitioners from the date of their joining. To bring home his point of argument that the Petitioners were appointed pursuant to regular selection, Mr. Kataky during the course of argument produced the copy of the call letter dated 3.7.90 by which Sri Sailen Kumar Das, one of the Petitioners was directed to appear in the written test for recruitment of AEI. He also placed reliance on the judgment and order dated 17.10.1995 passed by the Apex Court in WP(C) No. 368/1987. Further he placed reliance on the following decisions: (2003) 5 SCC 511 (Santosh Kumar v. State of A.P. and Ors.) AIR 2004 SC 3460 (Sanjay K. Sinha v. State of Bihar) 25. I shall first examine the claim of the Group-A Petitioners, as regards their entitlement to count their seniority from the initial date of appointment as EC. There is no dispute that they were so appointed pursuant to their selection. In the order of appointment, although, it was indicated that their designation might get changed, such change never took place, till they were re-designated in the year 1994. However, it is the stand of the Petitioners that although, they continued as EC, but in fact they discharged their duties and functions as AEI inasmuch as both the posts are one and the same. According to them, the pay scales attached to both the posts were one and the same till 1998 when consequent upon the revision of pay, the AEI were given a higher pay scale. Thus, it is the stand of the Petitioners that they being in the cadre of AEI right from 1970, irrespective of the purported re-designation as AEI affected in 1994, they are entitled to count their service from 1970. According to them since at the time of their appointment, there was no service rule governing their service conditions, the length of service will be the determining factor towards fixation of their seniority. 26. According to them since at the time of their appointment, there was no service rule governing their service conditions, the length of service will be the determining factor towards fixation of their seniority. 26. As against the aforesaid stand of the Petitioners, the official as well as the private Respondents have brought on record that it was only in the year 1984, the posts of AEI were created as will be evident from Annexure-2 communication dated 1.9.1984 annexed to the Misc. Case No. 2157/2004 filed in WP(C) No. 10,110/2003. As per the said communication, the sanction of the Governor of Assam was communicated towards creation of the posts mentioned in the communication which included 12 posts of AEI. By Annexure-3 order annexed to the said Misc. Case, 6 ECs were promoted as AEI. As per the own admission of the Group-A Petitioners, there was no service rule in the Transport Department encadering the cadres of EC and AEI at the time of their appointment. Even in the Assam Transport Service Rules, 1983, the cadres of EC and AEI were not included. It was for the first time in the year 1984, the aforesaid communication was issued conveying the sanction of the Governor of Assam towards creation of the posts of AEI. Thus, the cadre of AEI came into existence only in the year 1984. If that be so, the claim of the Petitioner that they were in the cadre of AEI, although were designated as EC cannot be accepted which is further fortified from the fact that in the year 1990, promotions from the cadre of EC to the cadre of AEI was affected. Had it been the case, that the cadres of EC and AEI were one and the same, the Petitioners would have surely objected to such promotion. 27. In view of the above, the plea of the Petitioner that they are entitled to count their seniority in the cadre of AEI right from their initial appointment as EC in 1970 and that they are entitled to count their seniority from 1970 is not tenable. Their length of service in the cadre of EC from 1970 to 1994 when they were re-designated as AEI will count only in the cadre of EC and cannot be in the cadre of AEI. Their length of service in the cadre of EC from 1970 to 1994 when they were re-designated as AEI will count only in the cadre of EC and cannot be in the cadre of AEI. The Assam Services (Revision of Pay) Rules, 1998 on which the learned Counsel for the Petitioners placed reliance in support of their plea leads us no where, inasmuch as, the said rule came into existence in 1998 i.e. after the creation of the post of AEI. It is true that in the said rules the existing pay scales for both the cadres i.e. EC and AEI was shown to be Rs. 1065/- to Rs. 2095/- which was revised to Rs. 2890/- to Rs. 5725/- and Rs. 3010/- to Rs. 6075/- respectively. The Petitioners have made their claim of equation of the posts of EC and AEI solely on the basis of these rules indicating the pre-revised scale for both the posts to be one and the same. Even if the pay scales for both the posts were one and the same, but in absence of any indication either in the pay rules or in the service rules of 1983 and in the Assam Transport Service (Recruitment and Promotion to the post of AEI) Orders 1990 that both the posts are borne in the same cadre, merely because till revision of pay in 1998 the posts carried same pay scales, it cannot be said that the Petitioners were borne in the cadre of AEI. There is no such indication in the aforesaid rules and the Order. 28. The stand of the official Respondents is that the post of AEI was created for the first time in the year 1984. If the cadre of AEI came into existence only in the year 1984 as will be evident from Annexure-2 communication dated 1.9.1984 annexed to the Misc. Case No. 2157/2004 in WP(C) No. 10,110/2003, there is no question of equation of the posts of EC and AEI. In the said communication the pay scale prescribed for the post of AEI was indicated as Rs. 470-800/- as against the pay scale for EC indicated as Rs. 410-670/-. Be it stated here that by the said communication apart from conveying the sanction of the Governor of Assam towards creation of 12 posts of AEI, such sanction was also communicated towards creation of 18 posts of EC. 470-800/- as against the pay scale for EC indicated as Rs. 410-670/-. Be it stated here that by the said communication apart from conveying the sanction of the Governor of Assam towards creation of 12 posts of AEI, such sanction was also communicated towards creation of 18 posts of EC. In this connection I may also refer to the Order of 1990 which was promulgated by notification dated 16.1.1990. The said Order of 1990, as recited in the Order itself was promulgated consequent upon creation of the new cadre of AEI in the Transport Department in the pay scale of Rs. 470-800/-. Thus there is no manner of doubt that the cadre of AEI came into existence only in 1994 and the methodology for filling up the said cadre post was laid down in the aforesaid Order of 1990. 29. Once it is held that the Petitioners are not entitled to count their seniority from 1970, the next question which comes up for consideration is as to whether the seniority of the Petitioners in the Group-B batch could have been fixed from their initial date of appointment which was described as ad hoc appointment. As noticed above, they were appointed by order dated 13.11.1992 and their such appointment was stated to be temporary and on ad hoc basis without any right for regularization of their services. For a ready reference the order of appointment dated 13.11.1992 is quoted below: GOVERNMENT OF ASSAM OFFICE OF THE COMMISSIONER OF TRANSPORT ASSAM AT GUWAHATI No. CST/F/25/90/182 Dated Guwahati, the 13th November, 1992. Subject to discharge without assigning any reason thereof, in the interest of public service the following persons are hereby temporarily appointed on ad hoc basis as Assistant Enforcement Inspector in the scale of____ plus allowances as admissible under the Rule from the date of their joining and posted in the office of the District Transport Office as indicated against each of them. This is purely a temporary arrangement and shall not entail any pre-emptive right for regularization of their service. The newly appointed persons should join within fifteen days from the date of issue at this order failing the order will be treated as cancelled. 1. Sri Pulin Borgohain Office of the DTO...(sic) 2. Sri Mridul Borgohain Offics of the DTO Dibrugarh 3. Sri Ramesh Das Office of the DTO Goalpara 4. The newly appointed persons should join within fifteen days from the date of issue at this order failing the order will be treated as cancelled. 1. Sri Pulin Borgohain Office of the DTO...(sic) 2. Sri Mridul Borgohain Offics of the DTO Dibrugarh 3. Sri Ramesh Das Office of the DTO Goalpara 4. Sri Sailen Kumar Das Office of the DTO Goolpara 5. Sri Omprakash Upadhyay Office of the DTO Kamrup 6. Sri Ghanakanta Gogoi Office of the DTO...(sic) Sd/- Commissioner of Transport Assam Guwahati-5. Memo No. CST/E/23/93/102(A) Dated Guwahati the 13th November, 92 30. The services of three of the five Petitioners in WP(C) No. 182/2004 i.e. Sri Sailen Kumar Das, Sri Om Prakash Upadhyay and Sri Ritul Borgohain, who are Respondents in other writ petitions filed by the Group-A Petitioners were regularized from the date of their joining as AEI by order dated 25.4.1994. The order reads as follows: GOVERNMENT OF ASSAM OFFICE OF THE COMMISSIONER OF TRANSPORT ASSAM AT GUWAHATI No. CST/F/23/90/Pt.92/25 Dated Guwahati, the 25.4.94 ORDER The services of the following Asstt. Enforcement Inspectors are hereby regularized from the date of their joining: 1. Sri Sailen Kumar Das 2. Sri Om Prakash Upadhyay 3. Sri Pulin Borgohain, 4. Sri Ritul Borgohain 5. Sri Ramendra Nath Das Sd/- Commissioner of Transport Assam Guwahati Memo No. CST-F/23/90/Pt. 92?25(A) Dt. Guwahati the 25.4.94 31. By yet Anr. order dated 11.5.1994, the services of Anr. writ Petitioner in Group-B batch i.e. Sri Lakhi Narayan Bargohain was regularized from the date of his joining as AEI, However, the services of the remaining Petitioner Sri Ghanakatna Gogoi was regularized by order dated 19.11.2003 from the date of joining as AEI. So far as such orders of regularization are concerned, the whole confusion is in respect of the expression "from the date of his joining". The confusion is also in respect of fixation of seniority of the Petitioners on that basis from their initial date of joining the services as AEI on ad hoc basis. 32. As noticed above, there is Anr. aspect of the matter, which is equally important towards determination of seniority of the Group-B Petitioners, which is as to whether the Petitioners were appointed following the due procedure of direct recruitment as envisaged under the aforesaid Service Order of 1990. 32. As noticed above, there is Anr. aspect of the matter, which is equally important towards determination of seniority of the Group-B Petitioners, which is as to whether the Petitioners were appointed following the due procedure of direct recruitment as envisaged under the aforesaid Service Order of 1990. It is the stand of the Petitioners that since they were appointed following the due procedure, irrespective of describing their appointment to be on temporary and ad hoc basis, they are entitled to count their seniority from their initial date of appointment and that the official Respondents have rightly conferred seniority on them on that basis. 33. While deciding the above issue, Anr. factor which necessarily will have to be borne in mind is that the Petitioners in Group-A batch were redesignated as AEI as per communication dated 7.2.1994. Their such re-designation was stated to be with immediate effect, meaning thereby that they were brought to the cadre of AEI with effect from 7.2.1994. Such re-designation of ECs as that of AEI was only in respect of the 1970-71 batches of 28 ECs, which included the Petitioners in Group-A batch. After such re-designation, they were also posted as AEI in different places. Thus the Petitioners in this batch are entitled to count their seniority with effect from 7.2.1994 in the cadre of AEI. If the Petitioners in Group-B batch are held to be not entitled to count their seniority from their date of joining as AEI in terms of the aforesaid orders of regularization and such regularization, even if held to be legally valid, and taken to be prospective, then in that case their such orders of regularization having been issued after the aforesaid order of re-designation of the Petitioners in Group-A batch, they will rank juniors to the said Petitioners. 34. Before answering the above issue, I deem it proper to refer to the proceedings of 1990 before this Court about which the learned Counsel for the Petitioners in Group-B batch much emphasized during the course of their argument. The said proceeding was initiated by the All Assam Transport Employees Association, represented by its Secretary Shri Balen Chandra Kalita, who is also one of the Petitioners in the three writ petitions filed by the Group-A Petitioners. 35. The said proceeding was initiated by the All Assam Transport Employees Association, represented by its Secretary Shri Balen Chandra Kalita, who is also one of the Petitioners in the three writ petitions filed by the Group-A Petitioners. 35. The aforesaid writ petition was filed on behalf of ECs which purportedly formed an Association represented by said Shri Balen Chandra Kalita who is one of the Petitioner in Group-A batch. The grievance raised in the writ petition was in respect of the proposed move of the Respondents to fill up the newly created 12 posts of AEI by way of direct recruitment. According to them, they were either entitled to be re-designated as AEI or were entitled to be considered for promotion as AEI to the exclusion of any direct recruitment. In this connection, some of the statements made in the writ petition are quoted below: 5. That the Petitioners beg to state that even after the formation of the Association and various representations submitted by the said association before the authorities concerned, like the Commissioner of Transport, Minister of Transport, Govt, of Assam and the Chief Minister of Assam, nothing was done by the said authorities and the grievance of the members of the said association remained unfulfilled. The members of the association (Petitioners) are still serving and continuing in the same posts of "Enforcement Checkers (Transport)" all these twenty years without any promotion and without any change in the designation of the post. It may be mentioned here that in the year 1986 the Petitioners came to know that the Government of Assam had created 12 posts of Assistant Enforcement Inspector under the Transport department; and having come to know about the creation of the said 12 posts, the Petitioners submitted a representation on 29.4.86 before the Transport Minister, Govt, of Assam, on behalf of the All Assam Enforcement Transport Employees Association under the signature of its Secretary, Sri Balen Chandra Kalita, praying for giving promotion to all the existing "Enforcement Checkers" to the category of "Assistant Enforcement Inspector" or at least to give promotion to those 12 posts from amongst the "Enforcement Checkers". But inspite of all these representations, the Govt. of Assam neither changed the designation of the "Enforcement Checkers" to "Assistant Enforcement Inspectors" nor did it give promotion to those 12 posts from amongst the Petitioners. 6. But inspite of all these representations, the Govt. of Assam neither changed the designation of the "Enforcement Checkers" to "Assistant Enforcement Inspectors" nor did it give promotion to those 12 posts from amongst the Petitioners. 6. That the Petitioners beg to state that inspite of the fact that the Petitioners are serving in the same post of "Enforcement Checkers" for the cost twenty years since 1970 and inspite of the fact that 12 posts of "Assistant Enforcement Inspectors" had been created in the year 1986 nothing was done from the side of the Government till March, 1990. It is only in the month of April, 1990 when the Commissioner of Transport, Govt. of Assam issued letter No. CST-E/23/90/90/1632 dated Guwahati the 24.4.90 to all the District Transport Officers of Assam, informing them that, shortly a few appointments of Assistant Enforcement Inspectors would be made on promotion basis, from the rank of Checkers; and accordingly asking them to let him know about the particulars of Enforcement Checkers, currently working under them, as per their respective Service Books in order to determine the seniority of the checkers. It was also directed to give the particular information as per the proforma enclosed. 7. That the Petitioners beg to state that having come to know about the abovenoted letter dated 24.4.90, me Petitioners became a bit hopeful that their stagnation in the same post for long twenty years would come to an end. But to their utter surprise they could come to know that the Commissioner of Transport, Assam, Sri P.C. Deuri IAS (the same officer who issued letter dated 24.4.90) issued letter No. CST-E/22/90/1832 dated 16.5.90 addressed to all the Employment Officer of all the districts of Assam, under the subject of "Recruitment of Assistant Enforcement Inspectors and Enforcement Checkers and promotion thereof" requesting them to furnish 10 (ten) names of suitable candidates for each category of the posts, on or before 31.5.90 to him to select and appoint the eligible persons. 9. That the Petitioners beg to state that they could come to know from the office of the Commissioner of Transport, Govt. of Assam, Guwahati, that the Commissioner fixed 22.7.90 as the date of interview of the new candidates for the posts of "Assistant Enforcement Inspector". 9. That the Petitioners beg to state that they could come to know from the office of the Commissioner of Transport, Govt. of Assam, Guwahati, that the Commissioner fixed 22.7.90 as the date of interview of the new candidates for the posts of "Assistant Enforcement Inspector". Having learnt about the said interview the Petitioners decided to send a deputation to place their grievance before the Government, and accordingly a deputation led by the President and Secretary of the Association, met the Hon'ble Minister, Transport, Govt. of Assam, Dispur on 17th July, 1990 and apprised of the position and submitted a written representation. The Hon'ble Minister assured the deputation that their grievances would be considered favourably. Copies of the said representation were also sent to the Hon'ble Chief Minister, the Secretary to the Govt. of Assam, Transport Department and the Commissioner of Transport, Govt. of Assam. 36. The prayer made in the writ petition is quoted below: In the premises aforesaid it is prayed that your Lordships may be pleased to issue a Rule calling upon the Respondents to show cause as to why a Writ should not be issued directing them, jointly and severally, to redesignate the posts of "Enforcement Checkers" held by the Petitioners as "Assistant Enforcement Inspectors" and to give all benefits in view there of and/or why such further order or orders should not be passed as well as be deemed fir and proper and call their records of the case and on perusal of the same and upon hearing cause or causes shown and hearing parties make the Rule absolute; and/or to pass such other order or orders as your Lordships may deem fit and proper; And Pending disposal of the rule the Respondents may be restrained from giving appointment to outsiders in the posts of the "Assistant Enforcement Inspectors" 37. The stand of the official Respondents in the aforesaid proceeding was that out of the 12 posts of AEI, 50% of the posts were required to be filled by direct recruitment and remaining 50% of the posts by promotion. In this connection they placed reliance on the provisions of the aforesaid order of 1990. They also stated about the promotion affected by order dated 17.12.1990 granting promotion to 6 ECs. In paragraph 9 of the counter affidavit, the following statements were made. 9. In this connection they placed reliance on the provisions of the aforesaid order of 1990. They also stated about the promotion affected by order dated 17.12.1990 granting promotion to 6 ECs. In paragraph 9 of the counter affidavit, the following statements were made. 9. That I do not admit the correctness of the statement in paragraphs 11, 12, 13, 14, 15, 16, 17 and 18, I further beg to say that 50% of the post in the cadre of Assistant Enforcement Inspector shall be filled up by direct recruitment through competitive examination to be conducted by Selection Committee under paragraph 5(2) of the Govt. Notification dt. 19.3.90 and 50% of the post of Asstt. Enforcement Inspector shall be filled up by promotion from the cadre of Enforcement Checker as laid down in para 5(B) of the said Notification who are matriculate or equivalent examination passed and have completed 10 years of the 1st day of the year in which the selection for promotion is made. The cadre of the Asstt. Enforcement Inspector has created only in order to solve the unemployment problems of the Educated Youths and partly to open the avenue of the promotion from the cadre of Enforcement Checker and as such the Petitioner cannot claim the entire 12 posts on promotional basis. There is not question of any high-handedness of the Government as well as department and or betrayed of the Petitioners. That there is no just and adequate guarantees invoke the provision of Articles 226 of the Constitution of India and as such the writ petition is liable to be dismissed. 38. Thus, the stand of the Respondents in the aforesaid proceeding was that the 50% of the posts of AEI would be filled up by direct recruitment as per the provisions of the aforesaid orders. 39. The aforesaid proceeding came to an end with the passing of the judgment and order dated 9.11.1992 dismissing the writ petition. It was held that the indication made in the order of appointment of the ECs who were appointed in 1970-71 that their designation might be changed to AEI was not by way of any definite representation so as to attract the principle of promissory estoppel. In the judgment, it was noticed that the post of AEI carries higher scale of pay than that of the EC. In the judgment, it was noticed that the post of AEI carries higher scale of pay than that of the EC. The challenge made to the communication dated 16.5.1990 made by the Commissioner of Transport to the Employment Officers/Employment Exchanges of various districts of Assam requesting to furnish 10 names of suitable candidates for each category of posts i.e. AEI and EC as indicated in the communication itself (AEI-6 and EC-6), was also noticed. The said communication was issued on the subject "Recruitment of Asstt. Enforcement Inspectors and Enforcement Chequres and promotion thereof." With the dismissal of the writ petition, no relief was granted to the Petitioners in the said proceeding. However, it was not decided as to whether the procedure adopted for direct recruitment, if any, was legal or illegal. 40. It will be pertinent to mention here that while entertaining the writ petition, an order dated 6.8.90 was passed recording the submission of the learned Sr. Govt. Advocate, Assam that no appointment would be made pursuant to the aforesaid employment notice dated 16.5.90. However, immediately after the judgment delivered on 9.11.1992, the Petitioners in Group-B batch were appointed by order dated 13.11.1992 which has been quoted above. 41. In view of the stand of the Petitioners in Group-A batch that the Petitioners in Group-B batch were appointed dehors the rules and in view of their appointment expressly made on temporary and ad hoc basis with further rider that such appointment would not give them any right of regularization in service and in view of the stand of the Group-B Petitioners that they were appointed pursuant to a regular selection, the official Respondents were directed to produce the records pertaining to their selection. They were so directed by order dated 7.10.2004 by which the learned Standing Counsel, Transport Department was requested to produce the records pertaining to appointment and regularization of the Petitioners in Group-B. 42. After the aforesaid order dated 7.10.2004, when the matter was again taken up on 16.12.2004, the learned Standing Counsel, Transport Department made a submission that inspite of the best efforts, the records could not be traced out. After the aforesaid order dated 7.10.2004, when the matter was again taken up on 16.12.2004, the learned Standing Counsel, Transport Department made a submission that inspite of the best efforts, the records could not be traced out. Noticing that the order of regularization in respect of Sri Ghana Kanta Gogoi, one of the Petitioners in Group-B was regularized in the recent past i.e. on 9.11.2003 as against such regularizations effected in respect of other Petitioners in 1994, it was pointed out to the learned Standing Counsel that atleast the file in respect of order of regularization dated 9.11.2003 might be available. Time was again prayed for, for production of the said file which was granted with a direction to the Commissioner of Transport, Assam to file an affidavit highlighting the real state of affair relating to alleged missing of the file in question. 43. On 4.1.2005, the matter was again taken up and the learned Standing Counsel produced two files bearing No. CSTE96/2003 and CSTE. 23/90/Pt.92. In file No. 96/2003, the Commissioner of Transport ordered for tracing out the records. Noticing that and in view of the fact that time was prayed for to file the affidavit as was earlier ordered, the matter was adjourned enabling the Commissioner of Transport to trace out the records and upon failure, to file the affidavit. 44. On 10.3.2005, it was finally submitted by the learned Standing Counsel, Transport Department that inspite of best efforts, the file bearing No. CSRT-E/23/90/182 containing the materials relating to appointment of the Petitioners in their services as AEI was not traceable. A submission was also made that even the select list pertaining to appointment of the said five Petitioners was also not available. Learned Standing Counsel, Transport Department fairly submitted that it was not known as to whether in fact any such select list was prepared or not. 45. The order of appointment made in favour of six persons including three Petitioners in Group-B has been quoted above. Such appointment was purely on temporary and ad hoc basis with the further rider that the same would not entail any pre-emptive right of regularization in service. If we go by the language employed in the order of appointment, there is no manner of doubt that the appointment of the said three Petitioners were on ad hoc basis without any selection. If we go by the language employed in the order of appointment, there is no manner of doubt that the appointment of the said three Petitioners were on ad hoc basis without any selection. There was no indication of any selection conducted for the purpose of appointment of the Petitioners. It is true that in the aforesaid proceeding, the challenge made was to the action of the Respondents to fill up the 6 posts by way of direct recruitment for which the employment officers/employment exchanges in the districts of Assam were requested to furnish 10 names for each category of posts i.e. AEI and EC. It is also true that Mr. S. Kataky, learned Counsel for the said Petitioners produced a copy of the call letter dated 3.7.1990 by which one of the Petitioners namely Sri Sailen Kumar Das was directed to appear in a written test scheduled to be held on 22.7.1990. It is also true that all the Petitioners assert that they were appointed following the due procedure as envisaged under the aforesaid Order of 1990. 46. Since the methodology adopted towards appointment of the Group-B Petitioners as AEI and their subsequent regularization will have a bearing in the real dispute in question i.e. the seniority between the officers in Group-A and B, an endeavor was made to ascertain the correct position by way of perusal of the relevant records, which unfortunately, could not be produced by the official Respondents on ground of being not traceable. As noticed above, the order of appointment quoted above includes only three Petitioners. The Petitioners in either batch have not brought on record the orders of appointment in respect of the remaining two AEIs/writ Petitioners. 47. In WP(C) No. 182/2004 filed by the Group-B Petitioners, a statement has been made in paragraph 7 that they were appointed in the year 1992 after conducting necessary examinations etc. by a duly constituted selection committee as envisaged under Order 3(a) of the Orders of 1990. However, they admit that they were appointed on ad hoc basis. In the counter affidavit filed by the said Petitioners in WP(C) No. 6053/2004, they have stated in paragraph 5 that they were duly appointed/regularized on the basis of selection process undertaken by the concerned authorities. Such a statement has been made in respect of the following averments made in paragraphs 8 and 9 of the writ petition. 8. In the counter affidavit filed by the said Petitioners in WP(C) No. 6053/2004, they have stated in paragraph 5 that they were duly appointed/regularized on the basis of selection process undertaken by the concerned authorities. Such a statement has been made in respect of the following averments made in paragraphs 8 and 9 of the writ petition. 8. That it is pertinent to state herein that prior to issuance of the letter dated 7.2.1994, the Respondent No. 3 by an order issued under memo No. CST/E/25/90/182 dated 13.11.1992 had temporarily appointed 6 (six) persons on ad-hoc basis as A.E.I, including the Respondents Nos. 6 to 10. In the said Order dated 13.11.1992, it was categorically mentioned that the appointments were temporary arrangement and shall not entail any pre-emptive right for regularization of their service. 9. That, as has been stated above, the Respondent Nos. 6 to 10 were initially appointed temporarily as A.E.I, purely on ad-hoc basis by issuing the Order dated 13.11.1992. Thereafter, in the year 1994, the services of the Respondent Nos. 6 to 10 were purportedly regularized by the Respondent authorities by issuing separate Orders with effect from their date of joining in the service as A.E.I, without holding any selection process. 48. Although, the records pertaining to the appointment and regularization of the five Petitioners in Group-B are stated to be not traceable, the records produced by the learned Standing Counsel, Transport Department have made the following revelation in respect of appointment of one of the Petitioners namely Sri Lakhi Narayan Borgohain (Petitioner No. 3). 49. The file No. CSTE.23/90/Pt.92 starts with the note to the Commissioner of Transport dated 3.12.1992. On 14.12.1992, a note for filling up the resultant vacancy of AEI consequent upon retirement of one Sri J. Deb Roy, AEI, Tinsukia, was put up. As per the said note, the post was to be filled up by promotion. On 30.12.1992, again a note was put up to the Joint Commissioner of Transport which reads as follows: JCT S/3 This an application of one Sri Lakhi Narayan Borgohain of Dibrugarh for the post of AEI referred by Hon'ble CM. At present there is only one post of AEI fallen vacant due to retirement of Sri J. Deb Roy, AEI. This post is supposed to be filled up by promotion from amongst existing E/C of this department. Submitted Sd/- Illegible 30/12 50. At present there is only one post of AEI fallen vacant due to retirement of Sri J. Deb Roy, AEI. This post is supposed to be filled up by promotion from amongst existing E/C of this department. Submitted Sd/- Illegible 30/12 50. After the aforesaid note Anr. note was put up on the same date to the Commissioner of Transport which reads as follows: CT Note above The post of AEI is filled up 50% direct and 50% on promotion. Due to retirement of Sri J. Deb Roy a post of AEI is lying vacant. The post may be filled up by direct recruitment and the next vacancy may be filled on promotion. At present there is one EI in the office DTO, Jorhat. He may be posted at Jorhat. SFO Sd/- Illegible 30/12 SRC Please put up draft. Sd/- Illegible Sd/-I Uegible 51. The aforesaid notes were follows by the following notes: JCT Order at the bottom PP, a draft is pleased below at S1.4c. Sd/- Illegible 31.12.92 CT Note above a draft at 4 may be approved. Sd/-Illegibla 31/12 Sd/-Illegible 31.12.92 52. S1.3C referred to in note dated 30.12.1992 is the application of the Petitioner No. 5 Sri Lakhi Narayan Borgohain addressed to the Secretary, Transport Department, Government of Assam praying for his appointment in the post of AEI. Alongwith the said application, he also submitted a duly filled in standard form of application alongwith his certificates and testimonials. The application was made on 14.11.1992 which reads as follows: To The Secretary Transport Department Govt. of Assam, Dispur Guwahati-6 Dated, dibrugarh the 14th November 92 Sd/- Illegible 30/12 Sub: Prayer for appointment in the post of Assistant Enforcement Inspector. Sir, P1. instruct ...(Illegible) I have the honour to lay the following few lines for favour of your kind and sympathetic consideration. Sd/- Illegible 25/11 That Sir, it is reliably learnt that a few CHIEF MINISTER persons are going to be taken into fill up some ASSAM vacant posts of of Asstt. Enforcement Inspector under your kind control. I beg to apply for one of the situations. In support of my candidature for the post, I beg to furnish my necessary particulars in a standard form of application, duly filled in and signed, enclosed herewith for favour of your kind perusal and necessary action. Enforcement Inspector under your kind control. I beg to apply for one of the situations. In support of my candidature for the post, I beg to furnish my necessary particulars in a standard form of application, duly filled in and signed, enclosed herewith for favour of your kind perusal and necessary action. In this context, I venture to mention here that I am a local bonafide unemployed educated youth of Dibrugarh, graduated in Arts from the Dibrugarh University, and have been in an urgent need of employment to support myself and my family members. As I have no source of income. Under the circumstances I most earnestly pray that Your benign self would be kind enough to consider my case with sympathy and appoint me in the post as carved for. And for this act of kindness, I shall remain ever grateful. I beg to declare further that I shall accept the appointment in any of the places of Assam, if favoured with and also submit to any instruction if your honour may be pleased to direct in this regard. Thanking you, Yours faithfully Sd/- (Lakhi Narayan Borgohain) Borpathar Hatkata Konwer gaon P.O. Konwer Handique Dist. Dibrugarh Enclo: One standard form of application 53. What transpired thereafter is reflected in the above quoted notes. On the basis of the aforesaid application, the endorsements thereon and the aforesaid notes, the Petitioner No. 5 was appointed as AEI against the aforesaid resultant vacancy by way of appointment order dated 31.12.1992 issued by the Commissioner of Transport, Assam. The Petitioner by his endorsement dated 31.12.1992 over the order of appointment received his copy of the order of appointment. He also received the copy of the order of appointment on behalf of the District Transport Officer, Jorhat. The appointment order alongwith the endorsement of the Petitioner No. 5 is reproduced below: GOVERNMENT OF ASSAM OFFICE OF THE COMMISSIONER OF TRANSPORT ASSAM:::GUWAHATI ORDER NO. CST-E/23/90/pt-92/4 DATED 31st DEC. 92 Subject to discharge without assigning any reason thereof, in the interest of public service, Shri Lakhi Narayan Borgohain, S/O Shri Basanta Kr. Borgohain of Barpathar Hat Kara Konwar Gaon, P.O. Konowar Handique, Dist.-Dibrugarh is hereby temporrily appointed on ad hoc basis as Assistant Enforcement Inspector in the scale of Pay Rs.1065-20-1225-30-1345-EB-30-1435-40-1635-50-2035-60-2095/- pm. CST-E/23/90/pt-92/4 DATED 31st DEC. 92 Subject to discharge without assigning any reason thereof, in the interest of public service, Shri Lakhi Narayan Borgohain, S/O Shri Basanta Kr. Borgohain of Barpathar Hat Kara Konwar Gaon, P.O. Konowar Handique, Dist.-Dibrugarh is hereby temporrily appointed on ad hoc basis as Assistant Enforcement Inspector in the scale of Pay Rs.1065-20-1225-30-1345-EB-30-1435-40-1635-50-2035-60-2095/- pm. Plus usual allowances as admissible under the rule from the date of his joining and posted in the office of the District Transport Officer, Jorhat. This is purely a temporary arrangement and shall not entail any preemptive right for regularization of his service. He should join within fifteen days from the date of issue of this order failing which the appointment will be treated as cancelled. Received my copy Sd/- A. Sengupta Lakhi Gohain and Commissioner of Transport D.T.O. copy Assam, Guwahati Sd/-Illegible 31/12/92 Memo No. CST-E/23/90/pt-92/4(A) Dated, Guwahati, the 31st Dec 92 54. From the above, it will be seen that as against the tall claim of the Petitioners in Group-B batch that they were appointed pursuant to regular selection, the records have indicated the manner of appointment of the Petitioner No. 5 which was dehors any selection process as contemplated under the rules. It was only on the basis of the recommendation made by the Chief Minister of the State, he was appointed overnight as a direct recruit and that too against a vacancy meant for promotion. Can such an appointment be said to be following the due procedure as envisaged under 1990 Order? The answer will be an emphatic "no". 55. Contrary to the above position, the Petitioners in Group-B batch in their counter affidavit filed in WP(C) No. 6053/2004 which includes the abovenamed Petitioner No. 5 Sri Lakhi Narayan Bargohain have made statements that they were duly appointed/regularized on the basis of selection process undertaken by the concerned authorities. Such a statement has been made in respect of paragraph 8 and 9 of the writ petition in which the Petitioners in Group-A batch have stated that the said five Petitioners were appointed purely on ad hoc basis without any preemptive right for regularization of their services and that their services were regularized without holding any selection process. The said five Group-B petitioners in their writ petition i.e. WP(C) No. 182/2004 have made similar statements in paragraph 7. The said five Group-B petitioners in their writ petition i.e. WP(C) No. 182/2004 have made similar statements in paragraph 7. According to them, they were appointed in the year 1992, after conducting necessary examinations etc., by duly constituted selection committee and that all of them were directly recruited/appointed in the post of AEI in terms of order 3(a) of the 1990 Orders. When such statements have been made on behalf of all the five Petitioners which include the Petitioner No. 5 for whose appointment, the methodology adopted has been noticed above, also would indicate the methodology adopted for appointment of the other four Petitioners. It is on that basis the said five Petitioners claimed that they were appointed following the due procedure of direct recruitment as envisaged under Order order 3 rule 1 of the 1990 Orders. 56. Although the official Respondents have not controverted the claim of the Group-A Petitioners that the Group-B Petitioners who were appointed on ad hoc basis without any selection, by filing any counter to controvert such a claim, they have made a categorical statement in paragraph 6 of Misc. Case No. 2157/2004 filed in WP(C) No. 10,110/2003 by which a prayer was made to vacate the interim order not to make any promotion to the cadre of Enforcement Inspector, that the five Petitioners in WP(C) No. 182/2004 (Group-B batch) were appointed after conducting necessary examinations etc. by a duly constituted selection committee in terms, of order-3(a) of the 1990 Orders. Such statement has been verified by the deponent i.e. the Commissioner of Transport, Assam as statements to the best of his knowledge. It is not understood as to how such statement which can necessarily be only on the basis of the records could be verified to be true to the best of knowledge of the deponent. If the stand of the official Respondents that the concerned file containing the materials relating to appointment of the five Group-B Petitioners is not traceable is to be accepted, then naturally the statements relating to their appointment could not have been made to be based on records. However, that does not mean that the deponent who was certainly not the Commissioner of Transport at the time of appointment of the five Petitioners, could have verified the statements to be true to his best of knowledge. 57. However, that does not mean that the deponent who was certainly not the Commissioner of Transport at the time of appointment of the five Petitioners, could have verified the statements to be true to his best of knowledge. 57. Although the learned Counsel for the said five Petitioners produced a copy of the call letter dated 3.7.1990 addressed to one of the Petitioners namely the Petitioner No. 1 in WP(C) No. 182/2004, no such documents could be produced on behalf of other Petitioners. The most relevant documents such as result sheet of the written examination, if at all the same was held, interview call letter after the written examination and most importantly the select list containing the names of the selected candidates could not be produced either by the official Respondents or by the said writ Petitioners. In fact, as recorded in the order dated 10.3.2005, the learned Counsel appearing for the Transport Department fairly submitted that it was not known as to whether any such select list was in fact prepared or not. Even if the submission of the official Respondents that the concerned file is not traceable is accepted, it is not believable that even a copy of the select list is also not available. However, after the revelation made by the records in respect of the appointment of the Petitioner No. 5 Sri Lakhi Narayan Bargohain as noticed above, there is no question of there being any selection and or preparation of any select list based on the kind of selection as envisaged under the 1990 Orders. 58. The official Respondents were directed to produce the relevant file relating to appointment of the five Petitioners which according to them is not traceable. However, they were unaware that the file relating to appointment of the Petitioner No. 5 was very much traceable and in fact available which they perhaps produced inadvertently without taking the ground of not being traceable. This file was produced in their endeavor to show the process of regularization of the services of the said five Petitioners which according to them could be done on receipt of police verification reports. The notes relating to regularization of the services of the five Petitioners also make an interesting reading. 59. This file was produced in their endeavor to show the process of regularization of the services of the said five Petitioners which according to them could be done on receipt of police verification reports. The notes relating to regularization of the services of the five Petitioners also make an interesting reading. 59. The same very file in which the appointment of the Petitioner No. 5 is available and as noticed above, also contains the methodology adopted for regularization of the services of the said Petitioners. After a note dated 15.6.1993 by which the order of the Chief Minister of the State towards posting of a particular AEI at Srirampur Check Gate, a note was put up on 17.9.1993 to the Commissioner of Transport indicating verbal instruction to call for the police verification report in respect of the five Group-B petitioners. The note reads as follows: CT As ordered verbally to call for P.V.R. in respect of AEIs appointed on ad hoc basis, a draft is placed below: Sd/-Illegible 17.9.9. 60. After the aforesaid note followed by other notes, a further note was put up on 20.4.1994 to the Commissioner of Transport followed by Anr. note dated 21.4.94 which are reproduce below: CT S121' Provisional verification report in respect of 3 candidates for appointment as AEI. As directed verbally to put up draft appointment orders, a draft is placed below as S1. 22 Sd/-Illegible 20/4 I have spoken to the M.T. over phone and met him to persuade him to defer this. But he has not agreed and hence signed today. 21.4.94 61. After the aforesaid notes a further note was put up on 22.4.94 followed by Anr. dated 11.5.94 before the Commissioner of Transport indicating receipt of police verification reports in respect of five AEIs which included four of the Petitioners namely Sri Sailen Kr. Das, Sri Ratul Buragohain, Sri O.P. Upadhyay and Sri Lakhi Narayan Bargohain respectively. It was on that basis the orders of regularization were issued in respect of the said four Petitioners by Annexure-4 series orders dated 25.4.94 and 11.5.94. However, such order of regularization in respect of the remaining Petitioner namely Sri Ghanakanta Gogoi was issued on 1.11.2003 on receipt of such police verification report which is available in the other connected file i.e. the file No. CSTE.96/2003. However, such order of regularization in respect of the remaining Petitioner namely Sri Ghanakanta Gogoi was issued on 1.11.2003 on receipt of such police verification report which is available in the other connected file i.e. the file No. CSTE.96/2003. This file begins with the note dated 6.11.2003 by which the prayer of this Petitioners to regularize his services was indicated. Recording the practice adopted in respect of other AEIs including the said four Petitioners on receipt of police verification reports, a note was put up for regularization of his service as per norms. Thereafter, further note was put up to state the norms for regularization. A detail report on the process of regularization was called for by note dated 13.11.2003. Such report was furnished by note dated 13.11.2003, according to which such regularization was made only on the basis of the police verification reports. Thereafter, by note dated 19.11.2003, regularization of the services of the remaining Petitioner namely Sri Ghanakanta Gogoi was ordered. It was on that basis the order of regularization in respect of the said Petitioner was issued on 19.11.2003 (Annexure-4 series to WP(C) No. 6053/2004). 62. In none of the notes initiated towards regularization of the services of the five Petitioners, there is not even any whisper that they were appointed through the regular process of selection as envisaged under the 1990 Orders. The whole basis of regularization of their services is the police verification reports. There is no mention of any selection or publication of any select list. 63. As regards the non-availability of records i.e. the file No. CSTE.23/90/Pt.92, only statement made in the affidavit filed by the Commissioner of Transport as per direction of this Court vide order dated 16.12.2004 in terms of which the Commissioner of Transport was to highlight the real state of affairs, is that the file could not be traced out till the date of filing of the affidavit inspite of vigorous search and as such direction was issued to trace out the same. However, as recorded in the order dated 10.3.2005, there was no possibility to trace out the file and as such without waiting any more, the hearing was concluded. However, as recorded in the order dated 10.3.2005, there was no possibility to trace out the file and as such without waiting any more, the hearing was concluded. Thus in this affidavit also, except making the statement that the file is not traceable, the official respondents have not even obliquely stated that the petitioners were appointed through regular process of selection, which obviously, they could not have even otherwise also in view of the facts and circumstances explained above. In fact, learned counsel appearing for the Transport Department fairly submitted that even the select list is not available and that it is also not known as to whether any such select list was prepared or not. With this kind of submissions made by the official respondents, their stand in Misc. Case No. 2157/2004 to the effect that all the five petitioners were appointed in terms of Order 3(a) of the 1990 Orders does not have any leg to stand. Such statements made in paragraph 6 of the said Misc. Case filed on behalf of the official respondents are the replicas of the statements made by the five Group-B petitioners in paragraph 7 of their Misc. Case No. 107/2004 filed in the same proceeding, with the required minor variations. It cannot be said to be a mere co-incidence. 64. From the aforesaid revelation made by the records, there is no manner of doubt that both the official Respondents as well as the private Respondents who are the Group-B five Petitioners in WP(C) No. 182/2004 have made false statements on oath that they were recruited as direct recruit AEI through the regular process of selection as envisaged under Order 3(a) of the 1990 Orders. If their statements are to be accepted, same will run counter to the records and their own appointment orders quoted above. Had it been a case of regular appointment, there would not have been any occasion to appoint them purely on temporary and ad hoc basis with further indication that the temporary arrangement made would not entail any preemptive right for regularization of their services. The Group-B Petitioners accepted such terms of appointment and continued in their services and eventually they were regularized in their such services only on the basis of police verification reports. 65. The regularization of services made in favour of the Group-B Petitioners are from the respective dates of joining the services by them. The Group-B Petitioners accepted such terms of appointment and continued in their services and eventually they were regularized in their such services only on the basis of police verification reports. 65. The regularization of services made in favour of the Group-B Petitioners are from the respective dates of joining the services by them. Had there been any selection and their appointment on that basis, firstly there would not have been any occasion to further regularize their services; secondly even if any such occasion had arisen in view of any omission on the part of the official Respondents, there would have been a mention of their selection in the official notes suggesting regularization of their services and thirdly their such regularization would have been on the basis of their merit positions in the select list and not on the basis of the respective dates of joining. 66. Even if such regularization is held to be valid and/or is not disturbed with, Anr. question which necessarily comes up for consideration is, as to whether the said five Petitioners can claim seniority retrospectively i.e. from the dates of their joining of the service as AEI in absence of any indication in the order of regularization itself. The order of regularization indicating their such regularization from the date of joining the service does not necessarily mean that they will be entitled to count their seniority form the initial date of joining, inasmuch as such regularization of service and seniority in service are two different and distinct entity. Such retrospective regularization may give the Petitioners other service benefits like continuity in service, incremental benefits, pensionary and other service benefits but may not necessarily entail the benefit of seniority for which altogether a different criteria is required to be followed. 67. In the normal circumstances, such ad hoc appointment dehors the rules followed by regularization of services as has been done in the instant case will not confer the right of seniority to the incumbents from the initial date of joining the service. Since the dispute raised in the present proceeding is primarily on fixation of seniority between the Group-A and Group-B Petitioners, I have resisted myself from expressing any opinion on the legality and validity of the very process and order of regularization of the services of the Group-B five Petitioners. Since the dispute raised in the present proceeding is primarily on fixation of seniority between the Group-A and Group-B Petitioners, I have resisted myself from expressing any opinion on the legality and validity of the very process and order of regularization of the services of the Group-B five Petitioners. There is no manner of doubt that the period of service rendered by the Petitioners from their initial ad hoc appointment to the date of regularization is fortuitous and cannot confer any right on the Petitioners to get seniority for the said period as well. Further, in the normal circumstances regularization of service is always prospective. 68. Consequent upon the promulgation of the aforesaid Order of 1990 regulating the recruitment and promotion to the post of AEI, such appointment was 50% by direct recruitment and remaining 50% by promotion. As per Order 3(a), the direct recruitment was to be made through competitive examination to be conducted by the selection committee composition of which was indicated in Order 5 as per which the Commissioner of Transport was to act as the Chairman and the Deputy Commissioner of Transport and the Deputy Secretary to the Government of Assam in the Transport Department as the members. In absence of the Deputy Commissioner of Transport, the Assistant Commissioner of Transport was to act as the member. After holding written test/interview select list was to be prepared by the selection committee in order of merit to be approved by the appointing authority. As per Order 7, subject to Order 6 relating to reservation, all appointments were to be made from the select list in order in which the names appeared in the list. 69. Admittedly the above procedure was not followed while appointing the Group-B Petitioners as AEI. As indicated above, although the official Respondents took the plea of records being not traceable, but such record is available in respect of the Petitioner No. 5 Sri Lakhi Narayan Bargohain. By supporting his case with the kind of statements made in the writ petition filed by them and in the counter affidavits filed in the Group-A Petitioners' writ petition, the other four Group-B Petitioners are also on the same footing. Even otherwise also, they could not produce any material relating to their selection as per procedure laid down in Order 3(a) and 5 of the 1990 Orders. Even otherwise also, they could not produce any material relating to their selection as per procedure laid down in Order 3(a) and 5 of the 1990 Orders. It is not believable that not even the select list would be available on records. Even in the call letter dated 3.7.90 in respect of Sri Sailen Kumar Das, the Petitioner No. 1 of Group-B Petitioners, there is no indication that he was directed to appear before any selection committee. He was directed to contract the District Transport Officer, Barpeta. As to what transpired thereafter has not been indicated either by the official Respondents or by the said Petitioners except making the statements as noticed above that they were appointed following the due procedure. The kind of procedure followed has been reflected above. 70. During the course of hearing of the case, the Group-B Petitioners called for the records of aforesaid Civil Rule No. 1408/1990 and on the basis of that learned Counsel appearing for them made submissions that when the very process initiated by the official Respondents by way of requesting the Employment Officers/Exchanges of the districts for direct recruitment of AEI was challenged, and the writ petition was dismissed, it should be understood that they were recruited through regular process of selection. There was a stay order in the proceeding and the counter affidavits filed by the official Respondents also did not indicate that any selection was conducted, rather as noticed above, in paragraph 9 of the counter affidavit, a statement was made that the 50% of the posts of AEI would be filled up by direct recruitment by competitive examination to be conducted by selection committee as per procedure laid down in Order 5 of the 1990 Order. 71. The proceeding was disposed of by judgment and order dated 9.11.1992 dismissing the writ petition and immediately thereafter the group-B Petitioners were appointed by orders dated 13.11.1992 and 31.12.1992 respectively. The manner in which the Petitioner No, 5 was appointed by order dated 31.12.1992 as has been revealed by the records has been discussed above. The common order of appointment dated 13.11.1992 appointing the three Group-B Petitioners gives an impression that the official Respondents were eagerly waiting for the final disposal of the writ petition. With this kind of a situation and the kind of statements made by the official Respondents and the Group-B Petitioners in Misc. The common order of appointment dated 13.11.1992 appointing the three Group-B Petitioners gives an impression that the official Respondents were eagerly waiting for the final disposal of the writ petition. With this kind of a situation and the kind of statements made by the official Respondents and the Group-B Petitioners in Misc. Case No. 2157/2004 and Misc. Case No. 107/2004 respectively about which a discussion has been made above and the stand taken by the official Respondents in the present proceeding lead to the irresistible conclusion that the official Respondents are hand in gloves with the Petitioners. 72. As against the above position of the Group-B Petitioners, the Group-A Petitioners were admittedly appointed pursuant to their regular selection entitling them to count their seniority in the cadre of EC from their initial appointment. It was indicated in their appointment order that their designation might get changed to AEI. Such re-designation was made on 7.2.1994 bringing them to the cadre of AEI with their respective posting in different places. Thus their seniority in the cadre of AEI would count with effect from the said date i.e. 7.2.1994. There is no dispute relating to this position and the Group-B Petitioners through their pleadings have admitted this position. Even the official Respondents also assigned them seniority on that basis. 73. In the impugned seniority list, the five Group-B Petitioners have been placed at serial No. 1, 2, 3, 4 and 5 and the Group-A Petitioners' alongwith the other direct recruits ECs of 1970-71 batch have been placed below them in order of merit positions they obtained in their selection. Had it been a case of appointment of the Group-B Petitioners following the due procedure, their respective seniority positions would have been indicated in order of merit. However, they have been assigned seniority on the basis of their respective dates of joining the service which is yet again indicative of the fact that the said Petitioners were never appointed pursuant to any selection as contemplated under the aforesaid Order of 1990. 74. There is Anr. aspect of the matter. The impugned gradation list dated 15.6.2004 indicating finalization of the gradation list of AEI was issued after publication of the provisional gradation list against which the Group-A Petitioners made joint representation dated 19.10.2002. 74. There is Anr. aspect of the matter. The impugned gradation list dated 15.6.2004 indicating finalization of the gradation list of AEI was issued after publication of the provisional gradation list against which the Group-A Petitioners made joint representation dated 19.10.2002. By order dated 22.7.2004 passed by this Court in WP(C) No. 5036/2004 filed by the Group-A Petitioners, this Court disposed of the writ petition remanding back the matter to the Commissioner of Transport for passing a speaking order on the said representation dated 19.10.2002. Pursuant to this order, the Commissioner of Transport issued the impugned order dated 29.7.2004 rejecting the joint representation of the Group-A Petitioners upholding the finalization of the provisional gradation list by the impugned order dated 15.6.2004 which was already set aside by the aforesaid order dated 22.7.2004. 75. As per the said impugned order dated 29.7.2004, advice of the Personal Department was obtained which reads as follows: The 1' batch of Assistant Enforcement Inspector comprising direct recruits of 1992-1993 will get their seniority first. After their position, the 2 batch will come whose services were re-designated as Assistant Enforcement Inspector from Enforcement Chequres in the 1994-1995. Thereafter, the 3 batch comprising SULFA will come whose services were regularized after creation of the post on 31.8.1998. The interse seniority within the batch will be determined as per select list/merit list of that particular batch. 76. It is not discernible as to what were the materials placed before the Personal Department while seeking the aforesaid advice. However, in the advice, the Personal Department opined and rightly so that the interse seniority within the batch would be determined as per select list/merit list of that particular batch. Since there is no select list pertaining to appointment of the Group-B Petitioners, their interse seniority has been fixed in the impugned gradation list on the basis of their respective dates of joining the service which will yet again indicate the hollowness of the claim and falsification of statement that the said batch of direct recruits were appointed following the due procedure. 77. 77. Strangely enough, one of the Petitioner in Group-B batch i.e. Sri GhanaKanta Gogoi, whose services were regularized only by order dated 19.11.2003 was given seniority at par with his colleagues i.e. the other four Group-B writ petitions in WP(C) No. 182/ 2004 from the initial date of joining, in the provisional gradation list which was subsequently made final by the impugned orders. Thus, here is a case in which the said incumbent was given seniority from his initial date of joining the service on ad hoc basis even before such service was regularized by order dated 19.11.2003. Thus, the simple methodology adopted by the official Respondents towards granting higher seniority to the five Group-B Petitioners was to count the same from their respective dates of joining the service on ad hoc basis made dehors the rules, which under the normal circumstances cannot count towards seniority. 78. The decisions on which the learned Counsel for the Group-B Petitioners placed reliance are simply misplaced. In the case of Santosh Kumar (supra) the Apex Court found that the promotee Sub-Inspectors involved therein were appointed out of seniority looking to the outstanding merit and record prior to the direct recruits like the Appellant. In that case, invoking the provisions of Rule 47 of the General Rules, which empowered the State Government to relax the Rules, the Apex Court found that the general power of relaxation was invoked in that case. Referring to the earlier decisions on the same issue relating to relaxation under Rule 47, the Apex Court found that Rule 47 of the General Rules gives power to the Governor to relax the rigor of the General Rules in such manner as may appear to be just and equitable. In that case the appointment of the Respondents made under Rule 10 of the AP State and Subordinate Services Rules 1962 was regularized by relaxing the relevant service rules and standing order. The Apex Court noticed that the Government, for good reasons had chosen to regularize the services of the Respondents with effect from the date of temporary promotion as Sub-Inspector in recognition and providing incentive for merit and in public interest. The Apex Court noticed that the Government, for good reasons had chosen to regularize the services of the Respondents with effect from the date of temporary promotion as Sub-Inspector in recognition and providing incentive for merit and in public interest. It was also noticed that the question of considering the case of every eligible person would scarcely arise as in such cases, it is only a particular individual who based on his notable performance and merit would be picked up for out of seniority promotion as was done in that case. It was also found that the General Rules provided for ad hoc appointment under Rule 10. It was under these circumstances the relaxation extended to the promotees for good and sufficient reasons without disturbing the basic rules of recruitment and such relaxation being only to the conditions of service, the Apex Court found no infirmity with retrospective regularization of the services of the promotees. 79. Apart from the fact that the aforesaid case was in respect of promotees unlike the present case of direct recruits, none of the ingredients discussed in the aforesaid judgment of the Apex Court is available in the instant case. The Group-B Petitioners were never appointed pursuant to any semblance of selection and they were also not regularized in exercise of any power of relaxation which was also not available under the Order of 1990. 80. The case of Sanjay K. Sinha (supra) has been pressed into service to emphasis that there could be no appointment in the service in absence of the posts to which substantive appointment are to be made. This decision has been relied upon to counter the claim of the Group-A Petitioners that they are entitled to count their seniority in the cadre of AEI with effect form their initial date of appointment in 1970-71. This aspect of the matter has already been discussed above holding that the Group-A Petitioners are not entitled to count their seniority from their initial date of appointment as EC. 81. The decision in WP(C) No. 368/1987 (Dr. Gagan Inder Kaur and Ors. V. Union Territory of Chandigarh and Ors.) is also of no use to the Group-B Petitioners. In that case the Supreme Court found that the writ Petitioners were appointed as Assistant Lecturers in the Chandigarh Administration during 1985 arid 1986. 81. The decision in WP(C) No. 368/1987 (Dr. Gagan Inder Kaur and Ors. V. Union Territory of Chandigarh and Ors.) is also of no use to the Group-B Petitioners. In that case the Supreme Court found that the writ Petitioners were appointed as Assistant Lecturers in the Chandigarh Administration during 1985 arid 1986. Consequent upon the division of the State of Punjab, the earlier Punjab Rules were continued in force in the Union Territory of Chandigarh. The earlier Punjab Rules of 1935 were replaced in 1976. As against the requirement of consultation with the Public Service Commission, the appointments after 1976 on the post of lecturers in the Union Territory of Chandigarh were being made by adopting the procedure of inviting nominations from employment exchange and/or an advertisement issued by the Administrator in leading newspapers in consultation with the college concerned and selection was made by a duly constituted selection committee consisting of the Education Secretary, Director of Public Instructions (DPI), experts in the subject and the Principal, under the erroneous belief that consultation with the UPSC was not necessary. Such appointments were described as ad hoc. Thereafter, a new set of rule were published in 1990 deeming conferment of Group-B status on lecturers with effect from April 1,1975. After making such 1990 Rules, a letter dated January 9,1991 was addressed by the Education Secretary, Chandigarh Administration to the UPSC referring to the rules and requesting to consider the cases of regularization of services of ad hoc lecturers. However, no action was taken on such recommendation. 82. The Apex Court noticing the fact that the Petitioners in that case were appointed following the Punjab Rules of 1937 which were in force at that time found that though the Petitioners and Ors. were appointed on ad hoc basis during the period 1977 till the publication of the 1990 Rules, was really an appointment on regular basis made in accordance with the procedure laid down in the 1937 Rules and that they were described as ad hoc appointees on an erroneous impression that consultation with UPSC was necessary after 1977 for making regular appointment. The Apex Court found that since the 1937 Rules had continued in force, consultation of UPSC was not required till 1990 Rules. The Apex Court found that since the 1937 Rules had continued in force, consultation of UPSC was not required till 1990 Rules. It was under these circumstances the writ petition was allowed holding that the Petitioners who were appointed prior to 1990 Rules though described as being ad hoc appointees, should be treated as regular appointees with the consequential benefits. The case of the Group-B Petitioners nowhere comes nearer to the case of the Petitioners in the said case before the Apex Court, inasmuch as they were appointed in complete violation of the provisions of 1990 Orders as has been discussed above. 83. I shall now refer to the decisions cited on behalf of the Group-A Petitioners. The first case is of K. C. Joshi (supra) in which the Apex Court held that the services rendered on ad hoc basis for 5 to 12 years cannot be taken into account for seniority. Countering the argument that the Rules should be deemed to have been relaxed by the Governor, it was held that such power could be exercised by the Governor in consultation with the PSC. In that case the Apex Court made the distinction between "rules of recruitment" and "conditions of service". It observed that to be a member of the service in a substantive capacity, it must be preceded by selection of a direct recruit. It was observed that "If the contention of the promotees that rules of recruitment are conditions of service is accepted, it would be open to the governor to say that "I like the face of "A " and I am satisfy that he is fit to be appointed; I dispense with the rules of recruitment and probation and appoint "A " straight away to the service in a substantive capacity as Assistant Conservator of Forests ". It was held that the basic rules of recruitment, which is not condition of service, cannot be relaxed. 84. The kind of example given by the Apex Court in the above quoted portion fits into the case the Group-B Petitioners. However, they were not regularized by exercising any power of relaxation which was also not available under the Order of 1990. As noticed above, they were regularized in their services only on the basis of police verification reports, making a mockery to the whole system of public employment. 85. However, they were not regularized by exercising any power of relaxation which was also not available under the Order of 1990. As noticed above, they were regularized in their services only on the basis of police verification reports, making a mockery to the whole system of public employment. 85. In the case of V. Sreenivasa Reddy (supra), the Apex Court referring to the case ofK. C. Joshi reiterated the views expressed by the Apex Court. It was noticed as to how the Governments resort to massive ad hoc appointments dehors the rules giving a go-bye to make recruitment in accordance with the rules and then resort to regularization of such appointments exercising the power under Article 320(3) proviso or Article 162 to make them the members of the service. The Apex Court observed that such practice not only violates the mandates of Article 14 and 16 but also denies to all eligible candidates, their legitimate right to apply for and stand for selection and get selected. 86. In the case of Rafiquddin and Ors. (supra) the Apex Court emphasized that the candidates belonging to competitive examination of earlier year selected illegally by lowering norms cannot claim seniority over candidates selected legally from competitive examinations held in subsequent year. This case was pressed into service to bring home the point of argument that the Group-B Petitioners appointed illegally cannot score a march over the Group-A Petitioners in so far as their interse seniority is concerned. 87. I may also refer to some of the decisions of the Apex Court concerning the issue raised in this proceeding. In the case of MA. Haque and Ors. v. Union of India and Ors. reported in 1993 (3) SLJ (SC), the Apex Court held that the ad hoc doctors in the Railways regularized as per the orders passed by the Apex Court would not get seniority over the regularly appointed doctors, hi the case of S.K. Saha v. Prem Prakash Agarwal, reported in AIR 1994SC 745, the Apex Court reiterated that the period during which an employee was serving on ad hoc basis cannot be taken into consideration for fixing seniority. The Apex Court observed in paragraph 9 of the judgment as follows: This Court has repeatedly struck down and decried any attempt on the part of the appointing authority to give a notional seniority from a retrospective date, especially, when this process affects the seniority of those who have already entered into the service 88. In the case of Jand K Public Service Commission v. Dr. Narinder Mohan reported in (1994) 2 SCC 630 , the Apex Court was involved with the issue, whether the ad hoc appointments of the Respondents were valid and whether it was permissible to the Government to use its executive power to regularize such ad hoc appointments by passing the PSC. Countering the direction given by the High Court to regularize the services of the Respondents, the Apex Court observed in paragraph 10 of the judgment as follows: It is true that the ad hoc appointees have been continuing from 1986 onwards but their appointments are de horse the Rules. Rules prescribed only two modes of recruitment, namely, direct recruitment or promotion by selection. As regards the lecturers are concerned, it is only by direct recruitment. The mode of recruitment suggested by the High Court, namely, regularization by placing the service records of the Respondents before the PSC and consideration thereof and PSC's recommendation in that behalf is only a hybrid procedure not contemplated by the rules. Moreover, when the rules prescribe direct recruitment, every eligible candidate is entitled to be considered and recruitment by open advertisement which is one of the well accepted modes of recruitment. Inviting applications for recruitment to fill in notified vacancies is consistent with the right to apply for, by qualified and eligible persons and consideration of their claim to an office or post under the State is a guaranteed right given under Articles 14 and 16 of the Constitution. The direction, therefore, issued by the Division Bench is in negation of Articles 14and 16 and in violation of the statutory rules. The PSC cannot be directed to devise a third mode of selection, as directed by the High Court, nor be mandated to disobey the constitution and the law. 89. The direction, therefore, issued by the Division Bench is in negation of Articles 14and 16 and in violation of the statutory rules. The PSC cannot be directed to devise a third mode of selection, as directed by the High Court, nor be mandated to disobey the constitution and the law. 89. In the case of Food Corporation of India v. Thaneswar Kalita reported in (1995) 3 SCC 342 , the Apex Court observed that the ad hoc promotion dehors the rules, even though continued for a long time would not count towards seniority. It held that the High Court was clearly in error in directing to treat the entire service as on regular basis. Similar views has been expressed in the case of Chief of Naval Staff v. G. Goapalakrishna Pillai reported in (1996)1 SCC 521 holding that ad hoc appointment without selection by a regularly constituted selection body, although continued uninterruptedly followed by regularization would not count towards seniority. 90. In the case of Excise Superintendent v. K.B.N. Viswehwara Rao reported in (1996) 6 SCC 216 , the Apex Court deprecated the practice of making appointment only through the Employment Exchange sponsored candidates. In paragraph 6 of the judgment the following observation was made: Having regard to the respective contentions, we are of the view that contention of the Respondents is more acceptable which would be consistent with the principles of fair play, justice and equal opportunity. It is common knowledge that many a candidate is unable to have the name sponsor, though their names were either registered or are waiting to be registered in the employment exchange, with the result that the choice of selection is restricted to only such of the candidates whose names come to be sponsored by the employment exchange. Under this circumstance, many a deserving candidates is deprived of the right to be considered for appointment to a post under the State. Better view appears to be that it should be mandatory for the requisitioning authority/establishment to intimate the employment exchange and employment exchange should sponsor the names of the candidates to the requisitioning department for selection strictly according to the seniority and reservation, as per requisition. Better view appears to be that it should be mandatory for the requisitioning authority/establishment to intimate the employment exchange and employment exchange should sponsor the names of the candidates to the requisitioning department for selection strictly according to the seniority and reservation, as per requisition. In addition, the appropriate department or undertaking or establishment should call for the names by publication in the newspapers having wider circulation and also display on their notice boards or announce on radio, television and employment news bulletins; and then consider the cases of all the candidates who have applied, fair play would be subserved. The equality of opportunity in the matter of employment would be available to all eligible candidates. 91. The above view expressed by the Apex Court was reiterated in the decision reported in (1997) 9 SCC 527 (Raj Kumar V.S. Shakti Raj. Both this decisions also answer the unsuccessful plea of the Group-B Petitioners in reference to the aforesaid proceeding in Civil Rule No. 1408/1990thatthey were sponsored by the employment exchanges. Firstly, as observed above, no documents/materials could be produced that they were sponsored by the employment exchange and secondly, even if they were so sponsored (which is admittedly not), the requisition placed by the Transport Department to the Employment Officers/Exchanges being confined to only 10 candidates and there being no wide circulation by way of issuance of advertisement in the newspaper and circulation of the same by way of announcement on radio/television and employment news bulletin, such requisition was not valid in the eye of law. However, this question need not detain us inasmuch as even after such requisition placed before the Employment Officers/Exchanges, no selection as envisaged under the 1990 Orders was held and the Group-B Petitioners were appointed in the manner and method as reflected above and also as indicated in their orders of appointment. 92. In the case of P. Ravindran v. Union Territory of Pandicherry reported in (1997) 1 SCC 350 , the Apex Court deprecated the Government for exercising the power under Article 320 of the Constitution taking of the post form the purview of the commission and to regularize services dehors the commission. In Anr. 92. In the case of P. Ravindran v. Union Territory of Pandicherry reported in (1997) 1 SCC 350 , the Apex Court deprecated the Government for exercising the power under Article 320 of the Constitution taking of the post form the purview of the commission and to regularize services dehors the commission. In Anr. case reported in the same volume i.e. Ram Ganesh Tripathi v. State of U.P. the Apex Court held that the Government could not have treated the Respondents and other ad hoc employees whose services were regularized on 17.5.85 as persons regularly appointed from an earlier date, nor could the Government have counted seniority from an earlier date either for promotion to higher post or for the purpose of giving selection grade. 93. In the case reported in (1999) 1 SCC 278 (U.P. Secretariat UDA Association v. State of U.P), it was observed that that merely because temporary appointment or promotion came to be made, seniority cannot be counted from the date of officiation except when the appointment was made in accordance with rules. Though the appointment is temporary, if it was made in accordance with rules and to a substantive vacancy, seniority will be counted from the date temporary promotion. Similarly, in the case of Dinkaranna Patil v. State of Maharastra reported in (1999) 1 SCC 354 , the question that arose for consideration, whether the period during which the promotees continued to hold the post of Sales Tax Officers Class-I on fortuitous basis could be reckoned for the purpose of determining their seniority was dealt with by the Apex Court holding that the answer would be in the negative unless the regularization was in conformity with the rules. 94. In the case of M.K. Shanmugam v. Union of India reported in (2000) 4 SCC 476 , reiterating the above views in respect of counting of seniority, the Apex Court once again held that ad hoc service does not count for seniority unless the same was pursuant to the same process as is applicable to regular appointment. In that case, the Apex Court noticed the findings of the CAT that the ad hoc promotions were not recommended by a competent DPC and the selection method which was prescribed for regular promotions, was also not followed. In that case, the Apex Court noticed the findings of the CAT that the ad hoc promotions were not recommended by a competent DPC and the selection method which was prescribed for regular promotions, was also not followed. Same view has been expressed in the case of T. Vijayan v. Divisional Railway Manager reported in (2000) 4 SCC 20 ; in the case of State of Haryana v. Haryana Veterinary and AHTS Association reported in (2000) 8 SCC 4 and in the case of State of Bihar v. Kameshwar Prasad Singh as reported in (2000) 9 SCC 94 . 95. The Apex Court in the case of Suraj Parkash Gupta v. State of Jand K reported in (2000) 7SCC 561 noticing the recent trend of cases held that the recruitment rules cannot be relaxed. It emphasized on the need of requiring strict conformity with the Recruitment Rules for both direct recruits and promotees. The wholesale regularization order by way of implied relaxation of the Recruitment Rules was held to be invalid. It was held that the power to relax the Rules cannot be treated as wide enough to include a power to relax rules of recruitment. Even for relaxation, the reasons are required to be recorded and even if such reasons are recorded, it was emphasized that the recruitment rules themselves cannot be treated to be producing hardship and bypassed on that ground. 96. The Apex Court in the case of Anand Kumar v. Prem Singh as reported in (2000) 10 SCC655 held that once it is found that the Respondent was treated with uneven hands in the matter of fixation of seniority, the promotion of the Appellant on the basis of wrong seniority cannot be upheld. In the case of Union of India v. Lalita S. Rao reported in (2001) 5 SCC 384 , the Apex Court held that the Medical Officers appointed by the Railway Administration on ad hoc basis were not entitled to count the pre-regularization service towards seniority. Similar view has been expressed in respect of Anr. set of Railway employees in the case of Swapan Kumar Pal v. Samitabhar Chakraborty as reported in the same volume of (2001) 5 SCC at page 581. Similar view has been expressed in respect of Anr. set of Railway employees in the case of Swapan Kumar Pal v. Samitabhar Chakraborty as reported in the same volume of (2001) 5 SCC at page 581. In that case, it was held that, although the suitability test conducted later culminating in regular promotion of the ad hoc promotees, the period of their ad hoc promotion could not be treated as regular promotion so as to count towards seniority. It was further held that in the absence of a rule to the contrary, the subsequent regular promotion would not relate back to the date of ad hoc promotion. Similar view has been expressed in the case of Md. Israils v. State of W.B. reported in (2002) 2 SCC 306 . 97. From the above discussions, both on facts as well as on law in reference to the aforesaid decisions of the Apex Court the position which has emerged is that the Group-B Petitioners are not entitled to count their seniority from their initial date of appointment. At best they are entitled to count their seniority from the respective dates of regularization of their services. No opinion is expressed in respect of the methodology adopted towards regularization of their services inasmuch as, same is not the issue raised in this proceeding. 98. Consequent upon the aforesaid conclusions and findings, the impugned final gradation list of AEI (Annexure-12) and the impugned order dated 15.6.2004 (Annexure-11) rejecting the joint representation dated 19.10.2002 and annexing therewith the final gradation list and so also the impugned order dated 29.7.2004 (Annexure-14) disposing of the joint representation afresh and affirming the aforesaid impugned order dated 15.6.2004 so far as the same fix the seniority of the five Group-B Petitioners above the Group-A Petitioners, stand set aside and quashed. The five Group-B Petitioners shall be assigned seniority consistently with the findings recorded above. 99. In view of the above findings, the impugned order dated 13.11.2003 in WP(C) No. 365/2004 (Annexure-6) filed by the Group-A Petitioners, by which the Commissioner of Transport indicated the seniority positions of the five Group-B Petitioners as per the provisional gradation list which was eventually made the final gradation list also stands set aside and quashed. 100. 99. In view of the above findings, the impugned order dated 13.11.2003 in WP(C) No. 365/2004 (Annexure-6) filed by the Group-A Petitioners, by which the Commissioner of Transport indicated the seniority positions of the five Group-B Petitioners as per the provisional gradation list which was eventually made the final gradation list also stands set aside and quashed. 100. I now proceed to deal with the challenge made to Rule 11 (6) (i) of the Assam transport Service Rules, 2003 by which the criteria of age bar upon reaching the age of 50 for the purpose of promotion to the cadre of EI has been fixed. As against the claim of the Petitioners that such fixation of age bar is arbitrary, unreasonable, illegal and without any rational basis, the Respondents in their counter affidavit have justified the provisions with the following averments made in paragraph 6. "6. That with regard to the statements made in paragraph 17 to 21 of the writ petition are not correct. The deponent begs to state that a person appointed to the cadre of Enforcement Inspector (for short EI) is required to undergo training at Police Training College, Dergaon, Assam and as such a person appointed to the post of EI by promotion beyond the age of 50 years usually do not have his physical capability to undergo training at Police Training College, Dergaon for which it is desirable that the promotion is required to be considered amongst the candidate below 50 years of age." 101. The Petitioners have highlighted as to how there is irrationality in fixing such age bar, the recruitment rules itself having provided eligibility upto the age of 36 years. A person appointed at the age of 36 years, which may be more after the recruitment process is over and he is appointed, by the time he completes the requisite 10 years of service in the substantive grade of AEI, and by the time he is considered for promotion, there is every possibility of he being over aged as per the provisions of the impugned rules. Even otherwise also, hosts of factors being involved for consideration for promotion on attaining the eligibility criteria, by the time an incumbent is considered for promotion, it may be too late on the day. 102. Even otherwise also, hosts of factors being involved for consideration for promotion on attaining the eligibility criteria, by the time an incumbent is considered for promotion, it may be too late on the day. 102. The justification as has been sought to be made by the above quoted statement towards upholding the impugned rules is not to be found in the recruitment rules i.e. the Assam Transport Service Rules, 2003. In the rule there is no mention of any such training. If such training is required to be undergone by an EI, it will necessarily mean that an AEI is also required to undergo such training. The Respondents have not explained in their counter affidavit as to whether an AEI after undergoing such training is further required to undergo such training once again on promotion as EI and also as to the nature of such training. The restriction imposed by the impugned rules towards consideration of the case for promotion may also lead to stagnation in one's service career. In fact, the Petitioners who were appointed in 1970-71 as EC, but for the re-designation with their induction to the cadre of AEI affected in 1994, have been stagnating in their service career for the last about 35 years. 103. Considering the above factors, I am of the considered opinion that the official respondents should seriously consider relaxation of the rigor of the provisions of Rule 11 (6)(i) by invoking its power as envisaged under Rule 26 of the aforesaid rules of2003, which reads as follows: Relaxation. 26. When the Government is satisfied that the operation of any of these rules cause undue hardship in any particular case, it may dispense with or relax the requirement of that rule to such extent and subject to such conditions as it may consider necessary for dealing with the case in a just and equitable manner. Provided that the case of any person shall not be dealt with in any manner less favourable to him than that provided in any of these rules (emphasis added) 104. On perusal of the aforesaid provisions of Rule 26, it could be seen that the Government is empowered to relax the rigor of any of the provisions of the rules on account of causing hardship in such a manner as may appear to it to be just and equitable in the interest of justice and equity. On perusal of the aforesaid provisions of Rule 26, it could be seen that the Government is empowered to relax the rigor of any of the provisions of the rules on account of causing hardship in such a manner as may appear to it to be just and equitable in the interest of justice and equity. Justice can be done only by exercising the power of relaxation. Otherwise, the object and purpose of Rule 26 will be largely frustrated. In this connection the emphasis made by the Apex Court towards exercising the power of relaxation in the case of Santosh Kumar (supra) may also be referred to. By exercising such power of relaxation, justice would be done to the deserving aspirants for promotion to the cadre of EI. This will eradicate the possibility of frustration for those who have crossed the age limit of 50 years, but otherwise, fit for such promotion. 105. The writ petitions are answered in the above manner. Consequently, the writ petitions i.e. WP(C) No. 10,110/2003, WP(C) No. 365/2004 and WP(C) No. 6053/2004 stand allowed to the extent indicated above. The prayer made in the writ petition i.e. WP(C) No. 182/2004 for a direction to the Respondents to proceed with the process of promotion to the rank of EI as per the provisions of the Assam Transport Service Rules, 2003 also stands allowed, subject, however, to the findings and conclusions arrived at in the former three writ petitions, meaning thereby that such process will not be on the basis of the seniority positions assigned to the Group-B Petitioners in the final gradation list which has been set aside and quashed to the extent indicated above. All the writ Petitioners are answered in the above manner leaving the parties to bear their own costs.