JUDGMENT Amitava Roy, J. 1. The assailments draped in a constitutional attire pivot around the central theme of inter se seniority between the two incumbents of the Health & Family Welfare Department of the State. A simmering discontentment smouldering over the years has erupted in dudgeon being eventually spurred by the investiture of the office of the Head of the Department of Medicine on the private respondent. 2. I have heard Mr. B.C. Das, senior advocate, assisted by Mr. U.K. Nair, Advocate for the petitioner, Mr. A.C. Buragohain, learned Additional Advocate General, Assam, for the official respondents and Mr. N. Dutta, senior advocate assisted by Mr. K. Agarwal, advocate for the respondent No. 6. 3. The maze of facts to appropriately comprehend the rival submissions has to be essentially traversed. The incumbents in the fray are encadered with the Health and Family Welfare Department of the State with the cleavage as Health (A) and Health (B) headed by two Directors. Health (A) Department is principally concerned with Primary Health Care and Welfare and the State Services with a distinct cadre governed by the Assam Health Service Rules 1976 (hereafter referred to as the Rules) and the Health (B) Department is devoted to Medical Education along with Patient Care with the Medical Colleges of the State. This Department has no service Rules/Regulations. The service conditions of the employees and the recruitments therein are made in two stages by the Assam Public Service Commission ('the Commission') in State Medical Colleges. The first phase of recruitment is confined to Junior Teacher, Demonstrator, Registrar, Resident Physician etc. and the second encompasses Senior Teachers, viz., Assistant Professor etc. Vide notification No. HLB.131/80/Pt./6 dated 6.3.1984 issued by the State Government pertaining to the recruitment in the cadre of Assistant Professor in various disciplines in the Medical Colleges, 50% of such posts arising in a calendar year were to be filled up by promotion under Regulation 4(d) of the Assam Public Service Commission (Limitation of Function) Regulations, 1951 (for short hereafter referred to as the Regulation) from amongst the Demonstrators/Registrars/Resident Physicians/Resident Surgeons/Anesthetists/Clinical Pathologists of the Medical Colleges and the other 50% of the posts by direct recruitment through the Commission. Following a narration of his academic accomplishments, the petitioner has asserted to have been directly recruited to the Health (B) Services on being selected and recommended by the commission in the year 1978. Following a narration of his academic accomplishments, the petitioner has asserted to have been directly recruited to the Health (B) Services on being selected and recommended by the commission in the year 1978. On his appointment as a Demonstrator of Social and Preventive Medicine (SPM), he was posted at Silchar Medical College, Silchar, by notification No. HLB.18/77/39 dated 15.12.19.78, by the Health and Family Welfare (B) Department. He was next appointed as Demonstrator in the same discipline and posted at Gauhati Medical College in supercession of the earlier order by notification No. HLB. 18/77/52 dated 20.6.1979. At or about that time the respondent No. 6 had been serving as Health Officer No. 1 at Goalpara District under the Health (A) Services. By notification No. 32684/HSE/Hol/T&P/153/77 dated 3.9.1977 his services were placed at the disposal of Health (B) Department and thereby was transferred temporarily as Registrar in the Department of Medicine and posted at the Gauhati Medical College, Guwahati. 4. The petitioner has averred that though the respondent No. 6 along with others had been interviewed by the Commission, thereafter in the year 1980 he was not selected. Subsequent thereto as well, he did not appear before the commission for his selection to the post of Registrar. In between the petitioner was transferred and posted as Registrar of Medicine in Gauhati Medical College vide notifications HLB. 18/77/60 and HLB.18/77/63 dated 18.8.1979 and 27.9.1979 respectively whereafter by notification No. HLB.960/86/2 dated 29.12.1986 he was confirmed in the post of Demonstrator, SPM w.e.f. 1.9.1986. Similarly the respondent No. 6 was also confirmed in the post of Registrar of Medicine w.e.f. 1.9.1986 vide notification No. HLB.965/86/4 dated 29.12.1986. In this context, the petitioner has pleaded reference to the office memorandum No. HLB.511/87/1 dated 14.8.1987 underlining the impermissibility of inter Service migration/transfer in the Health Department with the rider that in case such a change in service is insisted upon, the seniority of the incumbent concerned would be counted afresh in the new service. According to the petitioner, though the transition of the respondent No. 6 to Health (B) Services was illegal, he ensured his progression through the ranks shortly to be temporarily promoted to officiate as Assistant Professor of Medicine under Regulation 4(d) of the Regulations by notification No. HLB.372/87/62 dated 18.6.1987. According to the petitioner, though the transition of the respondent No. 6 to Health (B) Services was illegal, he ensured his progression through the ranks shortly to be temporarily promoted to officiate as Assistant Professor of Medicine under Regulation 4(d) of the Regulations by notification No. HLB.372/87/62 dated 18.6.1987. The petitioner has maintained that thereafter the said respondent was allowed to continue as such on ad hoe basis and was promoted thereto on the recommendation of the commission vide notification No. HLB.707/89/40 dated 4.1.1992 w.e.f. the date of his taking over charge thereof. According to the petitioner, such promotion having been effected without any interview conducted by the Commission, the same was illegal and without any authority of law. 5. The Commission also recommended the petitioner for recruitment to the post of Assistant Professor of Medicine vide letter No. 73.PSC/A-2/686-87 dated 20.11.1987 whereafter he was appointed as such vide notification No. HLB.557/87/17 dated 18.1.1988. He was subsequent thereto posted as Assistant Professor of Medicine in substantive capacity at Silchar Medical College, Silchar. Though the petitioner has referred to a provisional gradation list of Doctors of Medical Colleges published on 25.1.1988 wherein he and the respondent No. 6 were shown at Sl. No. 5 as Registrar and 15 as Assistant Professor under Regulation 4(d) of the Regulations respectively, according to him, the list was not finalized. Instead in the gradation list of Health (A) as on 31.8.1998, the name of the respondent No. 6 appeared at Sl. No. 378 of the Medical and Health Officer-1. Following this, the said respondent was further promoted on officiating basis as Associate Professor of Medicine for a period of one year under Regulation 4(d) of the Regulations and posted at Gauhati Medical College, Guwahati by notification No. HLB.233/94/10 dated 7.6.1994. In supercession of this notification, however, he was promoted on officiating basis under Regulation 4(d) of the Regulations by notification No. HLB.233/94/17 dated 30.7.1994. In suppression of this notification as well, the respondent No. 6 was awarded temporary promotion to officiate as Associate Professor of Medicine. Under Regulation 4(d) of the Regulations by notification No. HLB.233/94/30 dated 20.10,1994. The petitioner who was promoted as Associate Professor of Medicine on identical terms by notification No. HLB. 150/93/Pt.I/179 dated 26.10.1994 was posted at the Gauhati Medical College, Guwahati. Under Regulation 4(d) of the Regulations by notification No. HLB.233/94/30 dated 20.10,1994. The petitioner who was promoted as Associate Professor of Medicine on identical terms by notification No. HLB. 150/93/Pt.I/179 dated 26.10.1994 was posted at the Gauhati Medical College, Guwahati. Thereafter, the officiating promotion of the respondent No. 6 made by the earlier notification dated 30.7.1994 was restored vide notification No. HLB.233/94/48 dated 8.2.1995. According to the petitioner, in order to demonstrate that the respondent No. 6 had joined the post of Associate Professor of Medicine at Gauhati Medical College on 2.8.1994, a post of the same designation was transferred from the Assam Medical College for the period 2.8.1994 to 10.11.1994 as communicated by the letter No. HLB.233/94/49 dated 8.2.1995. The Accountant General, Assam, as well was required to issue necessary orders for withdrawal of his pay for the said period by letter No. HLB.233/94/50 of the even date. The officiating promotions of the petitioner and the respondent No. 6 were eventually regularized w.e.f. the date of taking over charge vide notifications No. HLB.150/93/Pt.I/179 dated 26.10.1998 and HLB.230/94/96 dated 29.12.1998 respectively. In between the respondent No. 6 had been promoted temporarily for one year and allowed to officiate as Professor of Medicine under Regulation 4(d) vide notification No. HLB.196/95/PIII/27 dated 30.1.1996 with effect from the date of taking over charge and was thereby posted at Gauhati Medical College, Guwahati. The petitioner as well was promoted as Professor of Medicine under Regulation 4(d) by notification No. HLB 106/96/Pt.I/104 dated 17.2.1997 on similar terms and was posted at Gauhati Medical College, Guwahati as well. Later, by notifications No. HLB.241/98/19 dated 22.6.2001 and HLB.288/93/PT./60 dated 8.6.2001 their (petitioner and respondent No. 6) aforementioned promotions were regularized w.e.f. 27.10.1998 and 2.8.1998 respectively. Following this, by an office order dated 6.3.2002 of the Principal cum Superintendent, Gauhati Medical College, Guwahati, the respondent No. 6 was proclaimed to be the Head of the Department of Medicine. Contending that the respondent No. 6's drafting to the Health (B) Services had been illegal and his promotions, thereafter, consequently ineffectual, the petitioner being aggrieved submitted a representation on 20.1.2003 with the Commissioner, Health and Family Welfare Department (B) vying for the post of Head of Department, Medicine. He followed up his plea with another appeal/representation dated 17.3.2003 claiming himself to be the senior most regular Professor of Medicine in the Health (B) Services/Cadre. He followed up his plea with another appeal/representation dated 17.3.2003 claiming himself to be the senior most regular Professor of Medicine in the Health (B) Services/Cadre. The petitioner has avowed that in the legal opinion that was sought for, the Legal Remembrancer, Assam, endorsed his contentions and recorded his precedence over the respondent No. 6 in Health (B) Service. The petitioner reiterated his request to be appointed the Head of Department of Medicine in his representation dated 10.7.2003 before the Chief Secretary of the State and persisted with it by lodging reminders on 2.6.2004 and 21.12.2004. Having come to learn in the month of May 2005 that the issue had since been disposed of by the aforementioned authority on 19.10.2004, he applied for a copy of the resultant order but to no avail. 6. The petitioner in substance has asseverated that the entry of the respondent No. 6 to Health (B) Services being impermissible and unauthorized in law, his promotions in the higher cadres are non est. Further his promotions not being preceded by selections conducted by the concerned Selection Committee or the Commission, as the case may be, qua other eligible senior and eligible members of Health (B) Services his appointment as the Head of the Department of Medicine is per se illegal, arbitrary and inspired by extraneous considerations. The seniority of respondent No. 6 in any of these posts not having been determined vis-a-vis the other regularly appointed incumbents including the petitioner, he could not have been bestowed with the said favour. The petitioner, to bolster his pleas has sought to draw sustenance from the determination made by the Chief Secretary of the State on his representation. 7. The respondent No. 1, in its affidavit affirmed by the then Joint Secretary to the Government of Assam, Health and Family Welfare Department, endorsed the existence of two separate and independent services i.e., Health (A) and Health (B) having distinctive hierarchy of posts and the Rules/Executive Instructions governing the service conditions relatable thereto. The answering respondent confirmed that the conditions of the incumbents of the Health (A) Service are governed by the Rules which are not applicable to those in Health (B) Service. The answering respondent confirmed that the conditions of the incumbents of the Health (A) Service are governed by the Rules which are not applicable to those in Health (B) Service. While reiterating the impermissibility of interdepartmental transfer between Health (A) and Health (B) services, the respondent admitted such flux for various reasons and endorsed the precept that the seniority of a Doctor seeking such transfer would be reckoned in the new service afresh from the date of joining it after he qualified himself therefor. Referring to the office memorandum dated 14.8.1987, it has been stated that pursuant to his transfer, the respondent No. 6 did not qualify for appointment for the corresponding post in the Health (B) Service and that he had not been recruited as a Demonstrator/Registrar/Resident Physician etc. through the commission at any of the Medical Colleges of the State. It has been maintained that the respondent No. 6 though had applied for recruitment against the said post through the Commission, he had not been recommended therefor. While endorsing the stipulations of the notifications dated 6.3.1984 to be prescriptive of the manner of recruitment to the cadre of Assistant Professor, it has been clarified that only the regular incumbents in the cadre of Demonstrator/Registrar/Resident Physician/Surgeon etc. recruited through the commission were eligible for promotion to that of Assistant Professor and all other persons were outside the purview of consideration. It has been contended, however, that a person not recruited to the Health (B) against the aforementioned posts of Demonstrator/Registrar, etc., could still be appointed through the commission to the post of Assistant Professor by way of direct recruitment. The answer respondent affirmed that even after the respondent No. 6 came to be confirmed in the Health (B) Service, his name continued to figure in the seniority list of Health (A) Service. It also admitted the absence of any order terminating his lien in the Health (A) Service absorbing him or his absorption in Health (B) Service. The promotion of respondent No. 6 to the post of Assistant Professor was also repudiated to be in excess of the quota prescribed for promotees. That the gradation list dated 21.1.1995 had not been finalized has also been iterated. The promotion of respondent No. 6 to the post of Assistant Professor was also repudiated to be in excess of the quota prescribed for promotees. That the gradation list dated 21.1.1995 had not been finalized has also been iterated. The answering respondent also authenticated the determination of the Chief Secretary of the State adjudging the petitioner to be senior to the respondent No. 6 with the recommendation to be appointed as the Head of Department of Medicine, Gauhati Medical College. The respondent also indicated the approval of the said finding by the Minister of Health and Family Welfare Department, Government of Assam and also the Chief Minister of the State. 8. The respondent Nos. 2 and 3 in their additional affidavits on behalf of the State respondents, however, have marked a visibly different course. In their counter, incidentally affirmed by the same deponent Shri Prafulla Kumar Goswami, they pleaded the necessity of the affiant as certain pertinent points had been left out due to inadvertent mistake earlier. The answering respondents averred that Health (A) and Health (B) are not two independent departments but administrative units of one department, i.e., of the Health and Family Welfare They also denied the petitioner's imputation that the respondent No. 6 had been functioning as the Professor and Head of Department, Medicine Gauhati Medical College without any authority. Referring to the order dated 3.9.1977 whereby the services of the respondent No. 6 had been placed at the disposal of the Health and Family Welfare (B) Department, they contended that his appointment as the Health Officer-1 had been on the basis of a recommendation made by the Commission. They endorsed the transfer of respondent No. 6 from Health (A) to Health (B) Services contending that there was no bar in that regard at that point of time and maintained that the inter service migration had been interdicted only in August 1987 vide the office memorandum dated 14.8.1987. They endorsed that the regularization of the promotion of the respondent No. 6 as Assistant Professor had been following the recommendation of the Commission. They also affirmed that the respondent No. 6 on being promoted as Associate Professor under Regulation 4(d) had joined the said post on 2.8.1994 and that on completion of four years of teaching experience thereat, his promotion as such was regularized w.e.f. 2.8.1998 also on the recommendation of the Commission. They also affirmed that the respondent No. 6 on being promoted as Associate Professor under Regulation 4(d) had joined the said post on 2.8.1994 and that on completion of four years of teaching experience thereat, his promotion as such was regularized w.e.f. 2.8.1998 also on the recommendation of the Commission. While admitting the process undertaken at the appropriate administrative levels acting on the petitioner's representation, the answering respondents inter alia referred to the opinion of the Additional Advocate General, Assam, rendered on 21.4.2004 ratifying the seniority of the respondent No. 6 over the petitioner advising against alteration of the inter se orientation after a lapse of so many years. The opinion of the Legal Remembrancer dated 14.9.2004 dismissing the petitioner's contentions on the ground of undue delay was also referred to. That the note dated 19.10.2004 of the Chief Secretary of the State and addressed to the Chief Minister of the State is not an order was asserted. They averred that the respondent No. 6 being senior to the petitioner had been rightly allowed to hold the charge of the office of the Head of Department, Medicine, Gauhati Medical College. 9. The respondent No. 6, in his counter, following a recitation of his academic career and literary contributions to his professional discipline, has contended that Doctors working in the Medical Colleges, Civil Hospitals and Dispensaries were under the Directorate of Health Services and till the year 1983 there were no separate Directorates of Medical Colleges. He reiterated against prohibition of interdepartmental transfer at that point of time and insisted that it was a common practice to shift the Doctors from Health (A) Service to Health (B) Service and vice versa According to the respondent, the petitioner was selected/nominated as Demonstrator of Social and Preventive Medicine (for short SPM)which is a paraclinical subject and not as a Registrar of Medicine-and that he was allowed to work at the Gauhati Medical College against the post of Demonstrator, SPM, in Silchar Medical College to facilitate his Post Graduate studies. While contending that he had been appointed as Health Officer-1 following selection by the Commission, the said respondent averred that on his application for recruitment to the post of Registrar in Medicine, the commission opined that he need not appear afresh for the interview. He maintained that his appointment as Registrar of Medicine had been regular and legal. While contending that he had been appointed as Health Officer-1 following selection by the Commission, the said respondent averred that on his application for recruitment to the post of Registrar in Medicine, the commission opined that he need not appear afresh for the interview. He maintained that his appointment as Registrar of Medicine had been regular and legal. He instead contended that the transfer of the petitioner from SPM to Medicine vide notification dated 18.8.1979 was illegal as he had never been nominated/selected by the commission for the post of Registrar of Medicine in accordance with law. While reiterating that Health (A) and Health (B) are not distinct and separate departments of the Government of Assam but constituent service units lodged within the Health and Family Welfare Department and that the nomenclature as above had been for administrative convenience, the answering respondent clarified that the Directorate of Medical Education was created only in or around the year 1983. He, however, maintained that there were no separate cadres till then and that the Doctors working in the Medical Colleges do not have Service Rules to govern them. According to the respondent, the notification/office memorandum dated 6.3.1984 is merely a guideline and thus not enforceable in law. The respondent referred to various instances of inter service postings to underline the allowability thereof and asserted that the office memorandum dated 14.8.1987 is prospective in operation. He insisted that as he had been transferred as Registrar of Medicine on 3.9.1977 and confirmed in that post w.e.f. 1.9.1986, the aforementioned office memorandum by no means could have any adverse bearing on his service career. He dismissed the inclusion of his name at Sl. No. 378 in the gradation list of Medical and Health Officer-1 as an inadvertent mistake on the part of the authorities, he having been confirmed as Registrar of Medicine from 1.9.1986 in Health and Family Planning (B) Department. While reiterating that his promotion to the post of Assistant Professor had been prior in point of time to that of the petitioner, the answering respondent reasoned that as the provisional gradation list dated 25.1.1988 and 21.1.1995, which reflect his name above that of the petitioner had not been objected to at any point of time by the latter and others, the same had become final. He affirmed to have joined as Associate Professor of Medicine at the Gauhati Medical College on 2.8.1994 and clarified that on the promotion of Dr. H.K. Das, Associate Professor of Medicine, Gauhati Medical College, as Professor of Medicine under Regulation 4(d) and posted at the Assam Medical College, Dibrugarh, he had been promoted to the resultant vacancy. Dr. Das at the first instance did not join the promotional post and it was following the transfer of Dr. N.N. Medhi, Professor of Medicine, Gauhati Medical College, to the Assam Medical College that he was promoted as Professor of Medicine, Gauhati Medical College by notification dated 20.10.1994. Consequently, he (respondent No. 6) was shown to have been promoted to the resultant vacancy of Associate Professor of Medicine vide notification No. HLB.233/94/30 dated 20.10.1994. However, to maintain the continuity of his (respondent No. 6) service in the promotional post as he had joined the same on 2.8.1994, a post of Associate Professor of Medicine, Assam Medical College, was transferred to the Gauhati Medical College for the period 2.8.1994 to 10.11.1994. The respondent affirmed the regularization of his promotion to the post of Associate Professor of Medicine vide the notification dated 29.12.1998 and also that to the post of Professor w.e.f. 2.8.1998. According to the respondent, he was unaware of the submission of the petitioner's representations and the exercise claimed to have been undertaken on that basis thereof as he had not been either associated therewith or afforded any opportunity in the matter. He insisted in categorical terms that his transfer as Registrar of Medicine in the Health (B) Services and promotions thereafter are legal and valid and being construed to be senior to the petitioner at all stages he had been rightly adjudged to be worthy of the office of the Head of Department of Medicine. The answering respondent questioned the maintainability of the writ petition on the ground of inordinate delay and also non-exhaustion of the alternative remedy of appeal before the Assam Administrative Tribunal. 10. In his reply, the petitioner, while generally reiterating his assertions in the writ petition, stated that the instances of transfer from Health (A) to Health (B) Cadre were not as a matter of routine but impelled by the exigencies of service which by no means would validate the respondent No. 6's migration to Health (B) Department. 10. In his reply, the petitioner, while generally reiterating his assertions in the writ petition, stated that the instances of transfer from Health (A) to Health (B) Cadre were not as a matter of routine but impelled by the exigencies of service which by no means would validate the respondent No. 6's migration to Health (B) Department. The petitioner insisted that the office memorandum dated 14.8.1987 was clarificatory in nature and therefore retrospective in effect. While contending that the said office memorandum was enforceable in law, the petitioner reiterated that the seniority list dated 25.8.1998 and 25.1.1995 had not been finalized. He denied the respondent No. 6's claim of having assumed the office of the Associate Professor on 2.8.1994 as admittedly the same had not then been vacated by its earlier incumbent Dr. H.K. Das. He termed the letters dated 8.2.1995 demonstrative of the respondent No. 6's assumption of the office of the Associate Professor w.e.f. 2.8.1994 to be motivated by extraneous considerations to bestow to with undue favour. According to him, the respondent No. 6 must be deemed to have joined the post of Associate Professor only after 8.2.1995 and, therefore, was evidently junior to him in the said grade. The petitioner also pointed out that the charge report dated 14.2.1995 belied the respondent No. 6's claim of having taken over charge of the office of the Associate Professor, Gauhati Medical College on 2.8.1994. The petitioner questioned the acceptability of the recommendation of the Commission, approving the promotion of the respondent No. 6 as Professor, Gauhati Medical College w.e.f. 2.8.1998 being based on incorrect facts. The aspect of delay was sought to be neutralized by contending that the issue of inter se seniority had not been settled at any earlier point of time and that the decision on his representations thereon was pending for all these years. 11. The respondent No. 6, in his rejoinder, asserted that at all relevant times the salary of the Medical Officer and Health Officer-1 was identical to that of the Registrar/Demonstrator etc. While reiterating that the petitioner's transfer from SPM Department to that of Medicine was illegal, he insisted that all Doctors who had been originally posted as Medical and Health Officer-1 were qualified to serve as teachers and accordingly they were transferred and posted in the Medical Colleges of the State. While reiterating that the petitioner's transfer from SPM Department to that of Medicine was illegal, he insisted that all Doctors who had been originally posted as Medical and Health Officer-1 were qualified to serve as teachers and accordingly they were transferred and posted in the Medical Colleges of the State. While insisting that on his promotion to the post of Associate Professor of Medicine at Gauhati Medical College, he joined the office on 2.8.1994, the respondent asserted that as Dr. Hitendra Kr. Das did not hand over charge to him, he unilaterally assumed the post with an intimation to the Government. He, however, clarified that the formal handing over and taking over was effected on 10.1.1994. 12. According to the petitioner, pursuant to the advertisement issued by the commission on 17.1.1987, the process for appointment to the two temporary posts of Assistant Professor of Medicine was initiated and eventually four candidates namely Dr. Inamul Hussain, Dr. Hitendra Kumar Das, Dr. Ganesh Ch. Pathak and Dr. Bhabani Prasad Chakraborty (respondent No. 6) were appointed/promoted under Regulation 4(d) of the Regulations. The petitioner imputed that the promotions of respondent No. 6 and Dr. Ganesh Ch. Pathak vide notification dated 18.6.1987 were in excess of the quota of 50% ear marked for promotees in terms of the notification dated 6.3.1984. The petitioner maintained that if two temporary posts of Assistant Professor of Medicine had arisen in the calendar year of 1987 to be filled up by direct recruitment as the advertisement proclaimed, the total number of vacancies for that year i.e., 1987 was thus identifiable to be four. As Dr. Hitendra Kumar Das and Dr. Inamul Hussain as serving Assistant Professor of Medicine under Regulation 3(f) had been temporarily promoted thereto under Regulation 4(d) by notifications dated 7.4.1987, the necessary quota of promotional vacancies for that year got exhausted and, therefore, the induction of the respondent No. 6 and Dr. Ganesh Ch. Pathak also as promotees being in excess thereof was clearly illegal. The petitioner, therefore, maintained that in view of the above intrusions into the direct recruit quota of the post of Assistant Professor of Medicine for the year 1987 he and one Dr. D.J. Bora though selected by the commission pursuant to the related process could not be appointed. 13. Pathak also as promotees being in excess thereof was clearly illegal. The petitioner, therefore, maintained that in view of the above intrusions into the direct recruit quota of the post of Assistant Professor of Medicine for the year 1987 he and one Dr. D.J. Bora though selected by the commission pursuant to the related process could not be appointed. 13. The respondent No. 6, in turn, contended that in the year 1985 two posts of Assistant Professors had fallen vacant due to the promotion of Dr. S. Umar and Dr. Muindra Chandra Dutta and in the exigencies of service Dr. Hitendra Kr. Das and Dr. Inamul Hussain had been temporarily appointed thereto under Regulation 3(f). The advertisement dated 17.1.1987 which was in continuation of the earlier one dated 11.11.1986 though was for two temporary posts of Assistant Professor of Medicine it did not disclose the year of the said vacancies or creation of the related posts. According to the respondent, the promotion of Dr. Hitendra Kr. Das and Dr. Inamul Hussain under Regulation 4(d) were thus in respect of the vacancies arising in the year 1985 and had no bearing whatsoever with the vacancies in the said posts for the year 1987. He, thus, categorically dismissed the allegation of his promotion in excess of the quota contemplated in the office memorandum dated 6.3.1984. 14. In the backdrop of the factious pleadings, Mr. Das, has emphatically argued that the transfer of the respondent No. 6 from Service "A" to "B" being in violation of the embargo as embodied in the office memorandum dated 14.8.1987, his entry thereto is, per se, illegal and, thus, his promotion to the higher ranks are non est in law. The said respondent not having been absorbed in Service "B", as contemplated in law, his confirmation, ipso facto, cannot validate his access thereto. As any appointment to the entry grade in Service "B", has to be essentially preceded by a selection by the Commission, in absence thereof, the impugned accommodation of the said respondent is ex-facie, illegal, he urged. According to the learned Senior Counsel, the two services though, integrally compose the same administrative department, are governed by distinctly different norms and prescripts for recruitment thereto and the transition from Service "A" to Service "B" de hors the observance of the relevant administrative guidelines and executive instructions, would render the same ineffectual, null 6§d void. According to the learned Senior Counsel, the two services though, integrally compose the same administrative department, are governed by distinctly different norms and prescripts for recruitment thereto and the transition from Service "A" to Service "B" de hors the observance of the relevant administrative guidelines and executive instructions, would render the same ineffectual, null 6§d void. The induction of the respondent No. 6's in Service "B" being impermissible, his confirmation, as Registrar therein, has no validating effect, he argued. Referring to the office memorandum dated 6.3.1984 delineating the quotas for promotion and direct recruitment to the post of Assistant Professor, Mr. Das has insisted that the promotion of the respondent No. 6's to the said grade has been, in transgression of the divide prescribed and, therefore, the same is ab initio, void. As all the four posts in the year 1987 had been filled up by promotion in breach of the quota sanctioned, the petitioner, though selected and recommended by the Commission, could not be appointed thereto and was, thus, unfairly denied his ascension in service he urged. In that view of the matter, Mr. Das, maintained that the respondent No. 6 could not be bestowed service seniority in the said post over the petitioner. Without prejudice to the above, the learned Senior Counsel has contended that as the respondent No. 6 had, in fact, taken over charge of the post of Assistant Professor only w.e.f 27.11.1990 regularization of his promotion w.e.f 18.6.1987 is on the face of it illegal, arbitrary and unsustainable in law. Mr. Das, argued that the seniority of the respondent 6 in the said post, therefore, in any view of the matter, could not have been reckoned from 18.6.1987. As some overt act is essential to demonstrate taking over of charge of a post in public office, in absence of any in the instant case, the promotion of the respondent No. 6 to the post of the Assistant Professor could not have regularized w.e.f. 18.6.1987. In this premise, the petitioner, who was appointed as the Assistant Professor to the said post following his selection by the commission on 18.01.1988, cannot be denied his due seniority over the said respondent, he maintained. 15. In this premise, the petitioner, who was appointed as the Assistant Professor to the said post following his selection by the commission on 18.01.1988, cannot be denied his due seniority over the said respondent, he maintained. 15. The learned senior Counsel assiduously argued that as the promotion of the respondent No. 6 as Associate Professor was stipulated to be effective from the date of taking over charge of the said post, regularization thereof w.e.f 2.8.1994, is patently illegal, as in fact, he could not join the assignment before 20.10.1994 in any case. Mr. Das, with reference to the pleadings on record and the documents relevant to the issue, urged that it being apparent therefrom that Dr. H.K. Das, Associate Professor, on whose promotion the respondent No. 6 was elevated to that grade, had not vacated the same till 8.2.1995, he (respondent No. 6) could not and did not take over charge thereof prior thereto. The learned Senior Counsel contended that the letters dated 8.2.1995 (Annexures 26, 27 and 28), belatedly issued to arrange a post of the Associate Professor for the relevant period to benefit the respondent No. 6, are grossly unfair, arbitrary and unjust and being subversive of the basic tenet of transparency in State action, he (respondent No. 6) cannot, in law, be permitted to reap dividends therefrom. Mr. Das, dismissed the pleaded assertion of the respondent No. 6 of having assumed unilateral charge of the said post on 2 8 1984 contending it to be inconceivable, in absence of any order of the Government to the said effect. The learned Senior Counsel maintained that though, the issue of abolition/creation/adjustment of post or formation of a cadre in public service is primarily the prerogative of the State, the authority or discretion to that effect, cannot be exercised as a pretence or a cloak to endow benefit to a favoured one in contravention of the fundamental principles of service jurisprudence and non-arbitrariness in executive action. The partisan initiatives taken on behalf of the State respondents to ensure the service seniority of the respondent No. 6 in the post of Associate Professor being fundamentally opposed to the guarantee of equality in public employment, these are discriminatory and unconstitutional, he urged. Mr. The partisan initiatives taken on behalf of the State respondents to ensure the service seniority of the respondent No. 6 in the post of Associate Professor being fundamentally opposed to the guarantee of equality in public employment, these are discriminatory and unconstitutional, he urged. Mr. Das, argued that the promotion of the respondent No. 6 to the post of Professor on the completion of the four years of qualifying service as Regular Associate Professor, being contingent on the validity or otherwise of the regularization of his promotion as Associate Professor, the same when tested on identical challenges, is also void and inoperative in law. 16. The learned senior Counsel, reasoned that as the petitioner's representations following an active consideration thereof, had fructified into an order at the highest administrative levels upholding his claim of seniority over the respondent No. 6, its a fit case, where an appropriate writ ought to be issued mandating implementation thereof. As a conscious decision, on a scrutiny of all the relevant aspect, had been taken by the appropriate authority, omission of the consequential ministerial acts of execution thereof, would not render the same nonexistent and, therefore, interest of justice demands enforcement thereof by this Court, he urged. Mr. Das contended that as the petitioner's representations have been pending and the order taken thereon, remain to be communicated to him as yet, there is no undue delay on his part to approach this Court with the reliefs, prayed for. As it is, this Court acting under Article 226 of the Constitution of India, exercises of an equitable jurisdiction and delay, if any, in absence of any prescription of limitation, cannot pose an insuperable bar therefor, he urged. Mr. Das asserted that the restraint in the exercise of writ jurisdiction on the ground of delay is a sanction of discretion and not a binding enjoinment of law. Judicial intervention in deserving cases ought not to be denied, per se, on account of delay alone, the learned Senior Counsel argued. As the petitioner's contentions in the case in hand, are of considerable moment, he should not be non-suited on this consideration, he insisted. The learned senior Counsel, to bolster his arguments placed reliance on the decisions of the Apex Court in Dr. Amarjit Singh Ahluwalia v. The State of Punjab and Ors. AIR 1975 SC 984 ; Fertilizer Corporation of India v. Union of India and Ors. The learned senior Counsel, to bolster his arguments placed reliance on the decisions of the Apex Court in Dr. Amarjit Singh Ahluwalia v. The State of Punjab and Ors. AIR 1975 SC 984 ; Fertilizer Corporation of India v. Union of India and Ors. (1996) 3 SCC 325 ; Keshav Chandra Joshi and Anr. v. Union of India and Ors. AIR 1991 SC 284 ; State of Mysore and Anr. v. V.K. Rangan and Ors. (1976) 2 SCC 894; R. Jeevaratnam v. State of Madras AIR 1966 SC 951 ; Sharif Ahmed and Anr. v. Regional Transport Authority, Meerut and Ors. (1978) 1 SCC 1 , State of Punjab v. Amar Singh Harika AIR 1966 SC 1313 ; Chandra Bhushan and Anr. v. The Deputy Director of Consolidation, Uttar Pradesh (Regional) Lucknow and Ors. AIR 1967 SC 1272 ; The Moon Mills, Ltd. v. R. Meher, President, Industrial Court, Bombay and Ors. AIR 1967 SC 1450 ; Kuldip Chand v. Union of India and Ors. (1995) 5 SCC 680 ; Tilokchand Motichand and Anr. v. M.B. Munshi etc. AIR 1970 SC 898 ; Union of India v. K.P. Joseph and Ors. AIR 1973 SC 303 ; State of Uttar Pradesh v. Chandra Mohan Nigam and Ors. (1977) 4 SCC 345 ; B.S. Minhas v. Statistical Institute and Ors. AIR 1984 SC 363 ; Home Secretary, UT of Chandigarh and Anr. v. Darshjit Singh Grewal and Ors. (1993) 4 SCC 25 ; Sri-La Sri Subramania Desika Gnanasambanda Pandarasannidi v. State of Madras and Anr. AIR 1965 SC 1578 ; Prabin Barua v. State of Assam AIR 1981 Ghy. 84; Union of India v. R. Bhusal (2006) 6 SCC 36 ; State of Maharashtra v. Digambar (1995) 4 SCC 683 ; Aligarh Muslim University and Anr. v. Mansoor Ali Khan (2000) 7 SCC 529 . 17. The learned Additional Advocate General, Assam, while endorsing the actions impugned, for fortification thereof, has produced the relevant official records. 18. Mr. Dutta, in refutation of the assailments laid, has at the threshold questioned the bona fide of the petitioner. The learned Senior Counsel, was severely critical of the delay in the institution of the present proceeding contending that on that ground alone, the petition is liable to be rejected. 18. Mr. Dutta, in refutation of the assailments laid, has at the threshold questioned the bona fide of the petitioner. The learned Senior Counsel, was severely critical of the delay in the institution of the present proceeding contending that on that ground alone, the petition is liable to be rejected. According to him, there being no explanation whatsoever for the inert indifference of the petitioner over the years since 1977, his inordinately belated pleas at the stage are simply not entertainable in law. The learned Senior Counsel urged that as the petitioner was consciously aware of the sequence of events for over three decades, the file of events ought not to be reversed at his instance and the petition is liable to be dismissed on the ground of delay and laches. As the promotions of the parties in the post involved and their seniority therein, have been finally settled, this Court at this distant point of time should not entertain the contentions raised, in the interest of administrative orderliness as well, he urged. The learned senior Counsel has urged that as the petitioners transition from the Department of Social and Preventive Medicine to that of Medicine would also be illegal on the touch stone of the office memorandum dated 14.8.2007 as is construed by him, the challenge to the respondent No. 6's transfer to Service "B" judged from that perspective fades into insignificance. The petitioner being guilty of approbation and reprobation, his assertions on this count are liable to be rejected in limine, he urged. Mr. Dutta, maintained that transfers from Service "A" to "B" have been not only routinely made, but the incumbents have, meanwhile, earned promotions and even retired as Principal(s) as well. If the transfer of the petitioner from the Department of Social and Preventive Medicine to that of Medicine and his promotions are free from the affliction of transgression of the office memorandum dated 14.8.1987, application of a different yardstick to the respondent No. 6, is wholly impermissible, he pleaded. As the appointment of the respondent No. 6 in Health "A" Service, has been following a selection by the commission under the Rules, on his transfer to Health "B" Service and confirmation as Registrar of Medicine in due course, he cannot be denied his seniority in service earned over the years, Mr. Dutta contended. As the appointment of the respondent No. 6 in Health "A" Service, has been following a selection by the commission under the Rules, on his transfer to Health "B" Service and confirmation as Registrar of Medicine in due course, he cannot be denied his seniority in service earned over the years, Mr. Dutta contended. Without prejudice to the above, the learned Senior Counsel has urged that the office memorandum dated 14.8.1987 being prospective in its operation, the same by no means can have a invalidating effect on the transfer of respondent No. 6 from Service "A" to Service "B". He further asserted that the prescription of the aforesaid office memorandum being at best akin to administrative instructions, no justifiable right has been created thereby in the petitioner to seek annulment of the respondent 6's entry in Service "B" complaining violation thereof. The petitioner having himself availed of the benefit of the said office memorandum he is estopped from pleading to the contrary vis-a-vis the respondent No. 6. 19. With profuse reference to the pleadings of the parties, the learned Senior Counsel argued that the impugnment of the promotion of the respondent No. 6's as Assistant Professor lacks in foundation therein and, therefore, is not deserving of being noticed in law. There being no factual assertion to the effect that the respondent 6 had taken over charge of the said office on 26.11.1990, the arguments built on such a supposition is, per se, flawed, he urged. Referring to the official communication No. HLB.372/87/Pt./III/6 dated 10.7.1987 of the Joint Secretary to the Government of Assam, Health and Family Welfare (U) Department, Mr. Dutta urged that as it is apparent therefrom that the respondent No. 6 had assumed charge of the post of the Assistant Professor on 22.6.1987 and that consequent upon the acceptance thereof, the Accountant General of Assam, had been required to issue his pay slip on the basis thereof, the petitioner's contentions to the contrary are frivolous and thus untenable. While insisting that the office memorandum dated 6.3.1984 had never been implemented in practice, the learned senior Counsel has submitted that in absence of essential facts bearing on the actual vacancy position of 1987, the assertion of breach of direct recruitment quota proceeds on mere hypothesis and is liable to be ignored. While insisting that the office memorandum dated 6.3.1984 had never been implemented in practice, the learned senior Counsel has submitted that in absence of essential facts bearing on the actual vacancy position of 1987, the assertion of breach of direct recruitment quota proceeds on mere hypothesis and is liable to be ignored. There being no basis whatsoever to assume the number of existing vacancies in the year 1987 to be four, the imputation of respondent No. 6's promotion as Assistant Professor being in excess of 50% of the promotional quota of the year 1987 is patently fallacious. Without prejudice to the above, Mr. Dutta in the alternative argued that as the stipulations embodied in the office memorandum dated 6.3.1984 constitute administrative instructions not enforceable under Article 226 of the Constitution of India, the petitioner's asseverations in this regard are not worthy of any premium. He further urged that the quotas for the two streams as portrayed by the office memorandum dated 6.3.1984 having irreversibly broken down as evidenced, inter alia, by filling up of vacancies of 1984-85 in the year 1987, challenge to the promotion of the respondent No. 6's as Assistant Professor pleading transgression of the prescript thereof, is untenable. 20. Mr. Dutta, argued that the respondent No. 6, had joined as Associate Professor w.e.f. 2.8.1994, on his promotion thereto and thus the regularisation thereof with effect from the said date is unassailably valid. Drawing the attention of this Court to the relevant excerpts of the pleadings of the parties, the learned senior Counsel insisted that the petitioner having admitted the date of joining of the respondent No. 6 as Associate Professor to be 2.8.1994 in the writ petition, at the first instance, the facts asserted in his additional affidavits marking a departure therefrom are not cognizable in law. Mr. Dutta, contended the fact that the pay slip of the respondent No. 6 for this post had been issued by the Accountant General, Assam w.e.f. 2.8.1994, which unmistakably demonstrates the date of his assumption of the said office to be so. As the materials on record convincingly proclaim that the respondent No. 6 had assumed the charge of the office of the Associate Professor w.e.f. 2.8.1994 and had been rendering his services therein, since then, his regularisation with effect therefrom and promotion to the post of Professor on the basis thereof, is valid, he urged. As the materials on record convincingly proclaim that the respondent No. 6 had assumed the charge of the office of the Associate Professor w.e.f. 2.8.1994 and had been rendering his services therein, since then, his regularisation with effect therefrom and promotion to the post of Professor on the basis thereof, is valid, he urged. As the respondent No. 6 is, thus, senior to the petitioner in the post of Professor to which he had been promoted later than him (respondent No. 6), the decision to adjudge him to be the Head of the Department of Medicine can by no means be denounced to be illegal, arbitrary or illogical, he pleaded. 21. Mr. Dutta, mounted his challenge on the determination made on, the petitioner's representation on the issues raised therein to be non est and ineffectual in law, contending as well that in any view of the matter, the same at best is a recommendation and not an order in finality. While reiterating that the office memorandum referred to hereinabove, does not wear a statutory emblem to assign any right enforceable in law, Mr. Dutta, argued that the exercise purportedly undertaken at the administrative level having been pursued without affording any opportunity of hearing to the respondent No. 6 to his prejudice, the same on this count alone is liable to be adjudged, null and void. As the quota rule sought to be projected by the office memorandum dated 6.3.1984 has since been observed in breach over the years, reliance placed thereon, while disposing of the petitioner's representation is apparently illegal. Similarly, as the office memorandum dated 14.8.1987 had not been intended to be given a retrospective effect, the endeavour to undo the respondent No. 6's transfer to Service "B" and his promotions thereafter on the basis thereof, is also arbitrary, he contended. Mr. Dutta, further argued that the findings recorded being contrary to the materials on record and in disregard of the opinion of the Addl. Advocate General, Assam, as well, the same are on the face of the records inoperative and void. The concerned administrative authorities having erred on fundamental principles of law in dealing with the issues raised, ignoring as well the march of events over three decades, the entire exercise being vitiated by incurable illegalities, is liable to be declared to be invalid, he urged. Mr. The concerned administrative authorities having erred on fundamental principles of law in dealing with the issues raised, ignoring as well the march of events over three decades, the entire exercise being vitiated by incurable illegalities, is liable to be declared to be invalid, he urged. Mr. Dutta, contended that the concerned executive authority in entertaining the petitioner's representations erroneously glossed over the enormous delay involved in purported exercise of his power of review. The said authority, while acknowledging the respondent No. 6's transfer to Service "B" prior to the office memorandum dated 14.8.1987, however, erred to conclude that his promotion as Assistant Professor was in breach of the promotional quota prescribed by the office memorandum dated 6.3.1984 construing it to be a statutory rule, he pleaded. Mr. Dutta, submitted that even assuming that the respondent No. 6's transfer to Service "B" and his promotions are not approvable in law, the prayer for implementation of the note of the administrative authority to the said effect if granted, in view of the inherent legal infirmities therein would result in the effectuation of an invalid determination thus, perpetuating illegality. As a writ court, in the exercise of its equitable jurisdiction ought not to act as a forum to endorse an illegality, the prayer for an appropriate writ for implementation of the recommendation of the administrative authority/functionary, if acceded to would result in an abuse of the process of law, he argued. According to the Mr. Dutta, the finding of the administrative authority against the validity of the respondent No. 6's transfer to Health B Department presupposes contravention of some norms observable by the commission as contemplated under Article 320(3)(A)(B) Constitution of India read with Rule 26 of the Assam Services (Discipline and Appeal) Rules, 1964, which the relevant records do not reveal and, therefore, the same is ex-facie, untenable. This is more so, as the commission had through out approved the promotions of the respondent No. 6 to the higher posts in the said service. The determination so made being atrociously impaired in procedure as well as essence, the same ought to be regarded as non est, he argued. To brace up his arguments, Mr. Dutta, place reliance on the decisions of the Apex Court and of this Court in Gadde Venkateswara Rao v. Government of Andhra Pradesh and Ors. AIR 1966 SC 828 , Ashish Kr. To brace up his arguments, Mr. Dutta, place reliance on the decisions of the Apex Court and of this Court in Gadde Venkateswara Rao v. Government of Andhra Pradesh and Ors. AIR 1966 SC 828 , Ashish Kr. Banik v. Tripura Co-operative Development Bank Ltd. and Ors. 2001 (1) GLR 395, Additional District Magistrate (City) Agra v. Prabhakar Chaturvedi and Anr. (1996) 2 SCC 12 , Union of India v. R. Bhusal (2006) 6 SCC 36 , Sharma Transport etc. v. Government of Andhra Pradesh and Ors. (2002)2 SCC 188 , Nagendra Nath Bora and Anr. v. Commissioner of Hills Division and Appeals, Assam and Ors. AIR 1958 SC 398 , R. Abdulla Rowther v. The State Transport Appellate Tribunal, Madras and Ors. AIR 1959 SC 896 , G.J. Fernandez v. The State of Mysore and Ors. AIR 1967 SC 1753 , Chief Commercial Manager, South Central Railway, Secunderabad and Anr. v. G. Ratnam and Ors. (2007) 8 SCC 212 , State of Maharashtra v. Digambar AIR 1995 SC 1991 , Maharashtra State Road Transport Corporation v. Balwant Regular Motor Service etc. AIR 1969 SC 329 , G.S. Lamba and Ors. v. Union of India and Ors. (1985) 2 SCC 604 . 22. Mr. Das, in reply, has reiterated with emphasis that administrative instructions in absence of statutory rules or by way of supplement thereof, confer an enforceable right to prevent arbitrariness in administrative action. As in the instant case, the guidelines contained in the office memorandum dated 14.8.1987 are intended to reinforce the Rules, those are binding, according to the learned Senior Counsel. This office memorandum being essentially clarificatory in nature, is also retrospective in its operation, he urged. As the factual foundation of the impeachment of the respondent No. 6's entry to Service "B" and his promotions thereafter, had been adequately laid in the writ petition, elaboration of the essential facts bearing thereon in the additional affidavits, is permissible in law, he contended. The respondent No. 6, in any view of the matter, having adequately traversed the additional pleadings and refuted the same, he would not suffer any prejudice on account of any reliance thereon. Mr. Das insisted that as a scrutiny of the pleadings as a whole, would be indispensable for a complete and fair adjudication of the issues involved, the plea raised on behalf of the respondent No. 6 in this regard deserves to be negated. Mr. Das insisted that as a scrutiny of the pleadings as a whole, would be indispensable for a complete and fair adjudication of the issues involved, the plea raised on behalf of the respondent No. 6 in this regard deserves to be negated. He contended that there being pleadings on record asserting implementation of the quota rule engrafted in the office memorandum dated 6.3.1984, the promotion of the respondent No. 6 as Assistant Professor being in breach thereof, is liable to be adjudged as inoperative in law. Mr. Das contended that even assuming that his promotion is valid, the same ought to be effective from 27.11.1990, the date from which he had actually taken over the charge of the said office and, therefore, his regularisation therein w.e.f 18.6.1987 is obviously flawed. 23. The respondent No. 6, as the contemporaneous facts reveal, had actually assumed the office of the Associate Professor on 8.2.1995, and thus, the regularisation thereof w.e.f 2.8.1994 is out rightly illegal with ah intention of doing undue favour to him, he contended. There being no proof of the respondent No. 6's taking over unilateral charge of the said post earlier, regularisation of his promotion thereto w.e.f. 2.8.1984 is ex-facie, untenable. The learned senior Counsel, urged that the decision of the concerned administrative authority being based on facts, whereby, the injustice meted out to the petitioner over the years, has been sought to be remedied it ought to be directed to be implemented. Dismissing the plea of want of fairness in the said process, Mr. Das contended that the petitioner as well, at all the intervening stages of the career, has been a victim of undue favour bestowed on the respondent No. 6 and, therefore, on that count, the determination made on his representations cannot be faulted with. Even, otherwise, having regard to the unambiguous and unequivocal coeval facts and documents, insistence for the observance of the rule of natural justice would be an useless formality, he contended. Mr. Das urged that delay is not an absolute bar for the invocation of the extra ordinary jurisdiction of this Court and as the issues raised by the petitioner deserve an adjudication on merits, the petitioner ought not to be non-suited on this ground. Mr. Das urged that delay is not an absolute bar for the invocation of the extra ordinary jurisdiction of this Court and as the issues raised by the petitioner deserve an adjudication on merits, the petitioner ought not to be non-suited on this ground. He added that consultation with the commission in the matter of fixation of seniority is not an imperative and that the decision taken at the administrative level on his representations being valid in law, it ought to be directed to be enforced to remedy the discriminatory treatment handed out to him since the inception of his career. 24. The emulous pleadings and the contentious arguments have been attended to with cautious attention. The reliefs prayed for, proclaim their entrenchment in deep rooted facts heaped over the years to be precise, spanning beyond three decades in praesenti. The controversy both on account of its complexity and antiquity therefore, demands a quietus. The factual panorama when viewed in its entirety proclaims its genesis in the transfer of the respondent No. 6 to Service "B" of the Department in the year 1977. The recorded facts reveal the petitioner's representation with the executive for redress to be lodged in the year 2003, culminating with the present petition. The petitioner, it cannot be gainsaid, had procrastinated with time, and had allowed the ongoing events to pass by. Both the parties have strenuously debated on this aspect, the respondent No. 6 to neuter the assailments and the petitioner to sustain the same. An adjudication on this facet of the lis, in the factual as well as in the legal perspectives, having regard to the bearing thereof thus, deserves a preponderant precedence over the other aspects. Before recapitulating the relevant facts on this feature of the discord, expedient it would be to briefly survey the law cited. 25. In Chandra Bhusan and Ors. (supra), the Apex Court while dwelling on the annihilative bearing of delay on the grant of relief in the exercise of extra ordinary jurisdiction under Article 226 of the Constitution of India, enounced that in absence of a statutory rule, the period prescribed for preferring an appeal is a rough measure and in every cage, the primary question ought to be whether the applicant had been guilty of laches or undue delay. Their Lordships underlined that a rule of practice cannot prescribe a binding rule of limitation and the manner of exercise of the discretion of the court would have to be determined with regard to the circumstances of the case. 26. In The Moon Mills (supra), their Lordships iterated that a writ of certiorari would not be granted in the face of negligence or omission on the part of the applicant to assert his right, lest it causes prejudice to the adverse party and recognized two circumstances to be Of utmost significance, namely, length of the delay and the nature of the acts done during the interval, which might affect the other party as well as a balance of justice or injustice in taking one course or the other in the context of the remedy claimed. 27. In M.S.R.T Corporation (supra), the Apex Court, while recounting the above observations noted with approval, the following excerpts of the rendering in Lindsay Petroleum Co. v. Prosper Amstrong Hurd (1874) 5 PC 221: Now, the doctrine of laches in courts of equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party as, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect be has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy. 28. The Apex Court in Tilokchahd Motichand and Anr. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy. 28. The Apex Court in Tilokchahd Motichand and Anr. (supra), was of the view that in absence of any period prescribed for initiation of a proceeding, utmost expedition is the sine qua non for the claims made and the party aggrieved, must move the court at the earliest possible time and explain satisfactorily the delay. While recognizing that the approach to be adopted is essentially to be conditioned by discretion, their lordships held the view that in a suitable case, a belated petition may be entertained depending on the nature and extent of the breach of the fundamental right involved, the remedy claimed and the reason for the delay. 29. While negating the supposition of the jurisdictional High Court in State of Maharashtra v. Digambar (supra), that laches or undue delay cannot disentitle a citizen to obtain relief under Article226 of the Constitution of India, the Apex Court emphasized on the essentiality that such an obligation would be more rigorous, if the relief sought for is founded on the charge of illegal or wrongful executive action. While cautioning against any approach to either ignore or leniently consider the aspect of delay, the Apex Court held that any order/decision granting the relief claimed without considering the blameworthy conduct of the petitioner evinced by laches or undue delay, acquiescence or waiver would be unsustainable. The above quoted extract from Lindsay Petroleum Co. (supra), was also relied upon. The accent of the determination in this decision is obviously on the necessity of scrutiny of the relevant facts bearing on the delay as an imperative prerequisite for/entertaining the reliefs sought for. The authorities noticed hereinabove, therefore., evidently do not lay down delay, per se, to be an insurmountable bar for analyzing the essential facts to judge the permissibility for grant of the reliefs prayed for in a proceeding under Article 226 of the Constitution of India. The authorities noticed hereinabove, therefore., evidently do not lay down delay, per se, to be an insurmountable bar for analyzing the essential facts to judge the permissibility for grant of the reliefs prayed for in a proceeding under Article 226 of the Constitution of India. While the extent of the delay and the reasons therefor, as assigned, would essentially temper the process so much so that either disregard of the march of events or over compassionate approach may render the same unsustainable in law, in a given set of facts and circumstances, mere delay in the institution of a writ proceeding, ipso facto would not disentitle the petitioner to the remedy sought for. The cavil on the ground of delay, if the attendant facts and circumstances demand an adjudication on merits, would have to be tested on the touch stone thereof, as well as equitable considerations in judicious exercise of discretion. The contextual facts project that the petitioner, as such, did not question before the year 2003, the entry of the respondent No. 6 in Service "B" and his consequential promotions interspersed with decisions and steps perceived by him to be unfair, unjust and wanting in bona fide. His plea is that as the determination of the inter se seniority between the parties had been from time to time deferred, eventually to be conveyed with the decision declaring the respondent No. 6 to be the Head of the Department of Medicine no cause of action in law emerged to such remedy before a judicial forum. This explanation though, has some foundation in the orders of the promotion of the parties initially under Regulation 4(d) of the Regulations and regularized subsequently with the recommendation of the commission, the same visibly betrays lack of vigilance and enterprise on his part, having regard to the nature of the ongoing developments and the graphic bearing thereof on his service prospects. The pendency of the petitioner's representation submitted in series from the year 2003 and a favourable response thereto, as the official records disclose granting him the much sought after service seniority over the respondent No. 6, however, in the estimate of this Court is a watershed in the set course of events. The pendency of the petitioner's representation submitted in series from the year 2003 and a favourable response thereto, as the official records disclose granting him the much sought after service seniority over the respondent No. 6, however, in the estimate of this Court is a watershed in the set course of events. The note or the determination of the Chief Secretary of the State, the existence whereof, is not in question, validity or otherwise thereof though, seriously debated upon, indubitably projects an undeniable perspective having a significant bearing on the adjudicative process involved. The records as on date carry an administrative recommendation acknowledging the petitioner's superior claim of seniority over the respondent No. 6. As the issue of delay primarily has to be examined in the exercise of the discretion of this Court, in absence of any statutorily prescribed period of limitation, having regard to the factual conspectus as a whole, I am not inclined to sustain the objection against the maintainability of the writ petition on that count. 30. As the denunciation of the promotion of the respondent No. 6 as Assistant Professor and Associate Professor is sought to be foiled on the ground of want of proper pleadings, a birds eye view of the decisions pressed into service in this regard, is unavoidably warranted. 31. In Sri-La Sri Subramania Desika Gnanasambanda Pandarasannidi (supra), the Apex Court was seized with a situation where the appellant's plea was rejected by the jurisdictional High Court, though not raised on his writ petition, but asserted in his rejoinder. Their lordships being of the view that as the respondent had full notice thereof at the time of arguments before the High Court, the negation thereof on the ground of omission to state the same in the pleadings was erroneous. 32. In Sarju Prasad Singh (supra), an allegation incorporated in the rejoinder of the appellant, which the State had no opportunity to counter, was disallowed to be agitated on the ground that the same had not been averred in the writ petition. 33. The contention of the respondent No. 1, in Additional District Magistrate (City) Agra (supra), that the jurisdictional High Court was bound to consider a grievance though, not registered in the writ petition, was rejected. 34. 33. The contention of the respondent No. 1, in Additional District Magistrate (City) Agra (supra), that the jurisdictional High Court was bound to consider a grievance though, not registered in the writ petition, was rejected. 34. The plea of legitimate expectation not having been raised in the writ petition in National Buildings Construction Corporation (supra), their Lordships of the Apex Court disallowed the same observing that there was no foundation thereof in the pleadings. 35. The Apex Court in Sharma Transport (supra), as well, shunned a plea before it, in absence of the assertion thereof in the pleadings and arguments related thereto before the concerned High Court, particularly when factual adjudication pertaining thereto was considered necessary. 36. In Bhusal (supra), the findings of the High Court of Delhi, which were determined to be beyond the pleadings, were interfered with. 37. In Prabin Barua (supra), this Court acted on an averment made in the affidavit-in-reply as the same remained uncontroverted in spite of opportunities prayed for and granted to do so by the State. The emerging preponderant judicial opinion thus proclaims against entertainment of a plea not founded on pleadings or if an opportunity of refutation thereof had been denied to the other party. The view propounded, does not per se prohibit elaboration of an averment already made, in the subsequent pleadings to reinforce the same, so much so that the same can be taken cognizance of to decide the relevant issues, if the party likely to be prejudiced has due knowledge thereof and in his discretion has either responded thereto or abstained from doing so. Such a leeway, however, cannot be permissibly availed if no foundation whatsoever of such a plea has been made in the pleadings submitted at the first instance, which if allowed at the later stage would tantamount to an opportunity of designing a new ground omitted to be taken earlier. 38. Having regard to the profusion of pleadings in the instant case, in which every assertion of fact has been assiduously dealt with by the parties to the minutest details, I do not feel persuaded to stultify the challenge made by the petitioner on the ground of deficiency therein. The additional pleadings though, conspicuously depict elaboration of facts on the issues raised, the writ petition on a scrutiny thereof, is not wholly shorn of the basic foundation therefor. The additional pleadings though, conspicuously depict elaboration of facts on the issues raised, the writ petition on a scrutiny thereof, is not wholly shorn of the basic foundation therefor. As an over rigorous and pedantic approach to the pleadings in hand in the opinion of this Court would have the effect of scuttling the highly contentious issues demanding scrutiny, a too fastidious and myopic approach ought to be eschewed. This plea fails as well. The facet of enforceability of administrative instructions as contained in the office memoranda qua the inter service migration and recruitment quotas next demands attention. As the parties have cited a catena of decision in this regard, it would be apt to deal with those before adverting to the facts. 39. In Nagendra Nath Bora (supra), the appellate authority under the Eastern Bengal and Assam Excise Act, 1910, had, while deciding the appeal in connection with settlement of country spirit shops thereunder, was alleged to have disregarded the instructions prescribing certain preference to the tribal people and restraints vis-a-vis persons in the debarred list. The Apex Court while observing that the recorded facts did not clearly demonstrate the correctness of the plea ruled that the non-observance of those instructions did not affect the power of the appellate authority to make its own selection or the validity of its order. This view finds reiteration in G.J. Fernandez (supra) and Chief Commercial Manage? South Central Railway (supra). The consistent view in these authorities is poised against enforceability of administrative instructions, even in case of breach thereof as the same do not confer any right on any member of the public to seek a writ under Article 226 of the Constitution of India. 40. In R. Abdulla Rowther (supra), their lordships of Apex Court in clear terms observed that executive orders do not confer any legally enforceable right on any person and do not impose any legal obligation on the authorities for whose guidance those are issued. While underlining that non-compliance of such orders would expose the authorities concerned to disciplinary or other appropriate actions, any breach thereof, would not justify the issuance of a writ of certiorari, as those though valid and binding on the subordinate authorities not being statutory rules, those are not endowed with the force of law and their misconstruction cannot be said to be an error of law. 41. 41. In K.P. Joseph (supra), the Apex Court, while reiterating the above however, observed that this proposition is subject to the exception that where the administrative orders confer rights and impose duties invocation of the principles of natural justice is imperative to ensure fairness in action. 42. In State of Uttar Pradesh v. Chandra Mohan Nigam and Ors. (supra), it was reiterated that administrative instructions which fill up gaps in statutory rules governing recruitment and conditions of service, are binding on the Government and cannot be violated to the prejudice of the Government servant. 43. That the policy guidelines formulated by the executive meant for general application is binding, was held by the Apex Court in Darshjit Singh Grewal (supra). Admittedly, there exists no statutory rules governing the recruitment and conditions of Service "B" of the Department. The office memoranda, therefore, cannot be construed to be supplemental of any such rule pertaining thereto. These, however, in no uncertain terms embody the administrative policy on matters concerning transfer from Service "A" to Service "B" and recruitment as well as promotion to the posts therein. In absence of statutory rules, the principles engrafted in this office memoranda though, intended to act as guidelines for the concerned State authorities, do not in the face of overwhelming judicial opinion noticed hereinabove, equip a member of the service with an enforceable right so much so that any violation thereof, per se would entitle him to any relief under Article 226 of the Constitution of India. Further, in view of the rival and mutually extinctive pleadings of the parties bearing on the stipulations contained in this office memoranda, desirable it would be to decide the issue otherwise on merits. 44. As alluded hereinbefore, the rudiments of the confrontation with the present manifestation had germinated with the transfer of respondent No. 6 from service "A" to service "B" of the department. The debate, with all its multi dimensional facets, pivot around this primal event. 44. As alluded hereinbefore, the rudiments of the confrontation with the present manifestation had germinated with the transfer of respondent No. 6 from service "A" to service "B" of the department. The debate, with all its multi dimensional facets, pivot around this primal event. Whereas the petitioner has pleaded that Health (A) and Health (B) are two independent departments of the State headed by two Directors controlling the Directorate of Health Services and Medical Education respectively and that the recruitment and conditions of service to Health (A) is governed by the Rules and those pertaining to Health (B) by administrative instructions which in essence mandate selection by the commission for advancement in the ascending ranks therein, the respondent No. 6 has insisted that till 1983 there was no separate Directorate of Medical Education and that the Doctors serving in Medical Colleges, Civil Hospitals and Dispensaries were under the Directorate of Health Services. The State respondents in their two affidavits, which are not wholly compatible with each other, however, have contended against the avowal of two independent departments but have designated Health (A) and Health (B) to be two administrative units of the same department of Health and Family Welfare. That the service conditions of the employees of Health (A) service are governed by the Rules and are not extendable to those of the Health (B) Service is admitted. Independent and distinctive existence of the two services has also been admitted. 45. The respondent No. 6 who had been appointed as the Health Officer-1 in Health (A) service was installed in Health (B) Service as Registrar, Department of Medicine, Gauhati Medical College on 3.9.1977. The petitioner has questioned this exercise to be violative of the bar as contained in the office memorandum dated 14.8.1987 and the standing administrative policy referred to therein. That the respondent No. 6 had failed to qualify to get selected for appointment in Health (B) Service, a condition precedent prescribed by the above office memorandum, has also been emphatically iterated. The entry-level posts in Health Service (B) admittedly are Junior Teacher/Demonstrator/Registrar/Resident Physician etc. with that of Assistant Professor, Associate Professor and Professor as higher posts in the hierarchy. That the respondent No. 6 had failed to qualify to get selected for appointment in Health (B) Service, a condition precedent prescribed by the above office memorandum, has also been emphatically iterated. The entry-level posts in Health Service (B) admittedly are Junior Teacher/Demonstrator/Registrar/Resident Physician etc. with that of Assistant Professor, Associate Professor and Professor as higher posts in the hierarchy. As against this, the respondent No. 6 has maintained that the office memorandum has neither a retrospective effect nor enjoins an absolute bar on such transfers and as a matter of fact there have been innumerable exchanges between two services in the past. According to him, he having been selected by the commission for being appointed as Health Officer-1 under the Rules in service, he was exempted from participating in any further process conducted by it for being recruited to the Health (B) Service. The State respondents in their first affidavit though seemingly endorsed the petitioner's stand, in the one filed subsequent thereto they retraced their path and inter alia contended that at the time of transfer of respondent No. 6 from Health (A) to Health (B) Service, there was no prohibition thereupon and that the inter service migrations had been stopped only in August 1987 on the issuance of the aforesaid office memorandum. The petitioner's imputation of illegal and unauthorized transfer of respondent No. 6 to Health (B) Services was denied. In view of an apparent conflicting stand of the State respondents, rendering its pleas inscrutable, necessary deductions and conclusions thus have to be made from the pleadings of the incumbents and the documents brought on record. 46. The post amongst others of Health Officer-1 is encadered in the Assam Health Services governed by the Rules. Thereunder, direct recruitment thereto has been provided following a selection made by the commission. Visibly the Health (B) Service is beyond the purview of the said Rules and logically is not governed thereby. That recruitment to Health Service (B) and the conditions of service of the incumbents thereof are governed by relevant executive instructions which amongst others require a selection by a commission as a pre-requisite for induction to the entry post therein is also not in dispute. That recruitment to Health Service (B) and the conditions of service of the incumbents thereof are governed by relevant executive instructions which amongst others require a selection by a commission as a pre-requisite for induction to the entry post therein is also not in dispute. There is no wrangle at the Bar either that the initial appointment of the respondent No. 6 as Health Officer-1 in Service A had been in accordance with the Rules i.e., following his selection by the commission. Though great emphasis has been laid on behalf of the petitioner to demonstrate that Health (A) and Health (B) are two independent departments, on a scrutiny of the pleadings of the parties and the documents placed on record, the same does not appear to be so. The assertion of the respondent No. 6 that till 1983, there were no separate Directorates for the services has remained uncontroverted. This is prima facie borne out by the notification dated 3.9.1977 whereby his services were placed at the disposal of the Health and Family Planning (B) Department as Registrar in the Department of Medicine, Gauhati Medical College. A copy of this notification had been forwarded amongst others to the secretary to the Government of Assam, Health and Family Welfare Department. The pleadings of the State respondent though incongruent in, some particulars, however, are consistent in asserting against two independent departments and proclaim instead two separate services Health (A) and Health (B) under the same administrative department of Health and Family Welfare. Creation of separate Directorates relatable to the two services per se does not testify the existence of two different departments. Though various documents refer to Health and Family Welfare (A) and (B) Departments, in the estimate of this Court, such nomenclature ipso facto in the background of the pleadings of the parties and the office memorandum dated 14.8.1987, in particular, project Health (A) and Health (B) as two units of services under the same administrative department of Health and Family Welfare. The transposition of the incumbents therein would thus involve their swapping between two service units of the same department. 47. There is no discernible dissension that the post held by the respondent No. 6 while in service "A" is not equivalent to the entry post in service "B". The office memorandum also refers to transfers to equivalent posts in the Medical Colleges and vice versa. 47. There is no discernible dissension that the post held by the respondent No. 6 while in service "A" is not equivalent to the entry post in service "B". The office memorandum also refers to transfers to equivalent posts in the Medical Colleges and vice versa. Though appointment to any of the entry posts in service (B) has to be essentially preceded by a selection by the commission in view of the equivalence noticed hereinabove and the process undertaken by the respondent No. 6 for his appointment as Health Officer-1, relaxation, if any, of the necessity of his fresh selection by the commission for induction in service (B) may not proprio vigore rentier his entry thereto illegal. His appearance ipso facto before the commission for selection, thus, would not estop him from contending valid induction in Health (B) either in absence of his ultimate selection on exception. The Commission though made a party respondent has chosen not to offer its response more particularly in relation to the respondent No. 6's averment of being relieved by it from participating in the selection for his access to service (B). The notification dated 3.9.1977 whereby this respondent who had been appointed as Health Officer-1 in service (A) on 2.2.1977 had been transferred as Registrar in Department of Medicine, Gauhati Medical College, his services having been placed at the disposal of Health and Family Planning (B) Department per se does not suggest that this arrangement was by way of his expatriation to service (B) on deputation. Noticeably this notification does not neither indicate anything in this regard nor suggest any temporariness. This is testified by his confirmation in the aforementioned post vide the notification dated 29.12.1986 w.e.f. 1.9.1986. Admittedly this transfer and confirmation of respondent No. 6 as above had remained unchallenged till the representation submitted by the petitioner in January 2003. The confirmation of the respondent No. 6 as Registrar of Medicine on an assessment of the attendant facts and circumstances signifies his integration in service (B) for all intents and purposes. 48. A bare reading of the office memorandum dated 14.8.2007 evinces that the same had been in the context of representations for transfer from service (A) and service (B) of the Department in equivalent posts. 48. A bare reading of the office memorandum dated 14.8.2007 evinces that the same had been in the context of representations for transfer from service (A) and service (B) of the Department in equivalent posts. The document though enjoins a bar on such inter service migrations for the reasons recorded therein, the same cannot be extended a retrospective effect for either reopening the transfers already effected or for invalidating the same. The office memorandum though suggests that an incumbent desirous of changing his service ought to subject himself to a fresh process of selection to be conducted by the commission or any other agency constituted by the Government and that his/her seniority would then be counted afresh in the new service, if assigned retrospectivity in operation would be divestitive of the rights already accrued in disregard of the events settled in the interregnum. Such a consequence as the text of the document reveals has neither been intended nor is permissible in the comprehension of this Court. The office memorandum though stipulates a bar for the inter service transfer or migration with the fallout thereof it would, thus, have to be logically accorded a prospective operation. This is more particularly in view of the several instances of inter service transfers effected prior thereto resultantly lodging of the incumbents concerned in their respective hierarchical avenues of their career. As the transfer of the respondent No. 6 admittedly to Service (B) had been before the issuance of the above office memorandum, he is beyond the coils of the bar mandated thereby. The aspect of approbation and reprobation vis-a-vis the petitioner also cannot be discounted. The contextual facts evidence that the petitioner on being recommended by the commission was appointed initially as Demonstrator of Social and Preventive Medicine temporarily and was posted at Silchar Medical College, Silchar, vide notification dated 15.12.1978. He was thereafter by the notification dated 26.6.1979 posted at Gauhati Medical College, Guwahati, in the same capacity and thereafter as Registrar of Medicine of the same institution by notification dated 18.8.1979. Eventually by notification dated 29.12.1986, he was confirmed as Demonstrator of Social and Preventive Medicine though by then he had been functioning as Registrar of Medicine, Gauhati Medical College. The pleadings, however, unequivocally disclose that the posts of Demonstrator and Registrar belong to the same cadre. Eventually by notification dated 29.12.1986, he was confirmed as Demonstrator of Social and Preventive Medicine though by then he had been functioning as Registrar of Medicine, Gauhati Medical College. The pleadings, however, unequivocally disclose that the posts of Demonstrator and Registrar belong to the same cadre. Be that as it may, Social and Preventive Medicine and Medicine are two departmental disciplines of study and patient care. The office memorandum dated 14.8.1987 incidentally did in categorical terms prescribe an embargo on inter departmental transfers as well. Viewed in that perspective, the transition of the petitioner who had been confirmed in the department of Social and Preventive Medicine to the Department of Medicine as Registrar thereof was stricto senso not sanctioned thereby as well. By the same analogy applied for the respondent No. 6, the petitioner's accommodation as Registrar of Medicine is not liable to be interfered with at this distant point of time. Both the incumbents after being inducted in the Department of Medicine in the post of Registrar were thereafter elevated to the higher ranks propelling them to the next bout of dissensions. 49. The decision rendered in Fertiliser Corporation Ltd. (supra), cited on behalf of the petitioner is of no avail to him as the facts are clearly distinguishable. The private respondent therein who had joined the Indian Audit and Accounts Services was on deputation shifted to the Bureau of Public Enterprise to join the assignment as Joint Advisor. He was thereafter selected by the Public Enterprise Selection Board for the post of Director (Finance) for the Fertiliser Corporation Ltd. ('the Corporation'). He was then appointed such. The Ministry of Industrial (Department of Industrial) Development, Government of India thereafter appointed him as Director (Finance) of the Cement Corporation of India Ltd. for a period of two years. The respondent represented contending that as his appointment as Director (Finance) of the corporation had been for a period of five years, his induction in the same capacity for a period of two years with the Cement Corporation of India Limited would prove disadvantageous to him. In response thereto, he was relieved from the services of the corporation. The respondent successfully challenged the order before the jurisdictional High Court, which directed the corporation to reinstate him in service as Director (Finance) or to accommodate him in any other post with all consequential benefits. In response thereto, he was relieved from the services of the corporation. The respondent successfully challenged the order before the jurisdictional High Court, which directed the corporation to reinstate him in service as Director (Finance) or to accommodate him in any other post with all consequential benefits. The Apex Court in the above factual premise interfered observing that the appointment of the respondent as Director (Finance) with the corporation having been made for a period of five years or till the age of superannuation whichever was earlier, in absence of any order of his absorption therein on permanent basis actualized by an order or notification to that effect, no finding favourable to the petitioner could be recorded only on the basis of some correspondences or orders or notifications issued by others. The fact that the respondent had left the corporation on his own and that he stood relieved from its services on his request was also noticed. On a totality of the above considerations their Lordships held the view that there was no occasion for him to claim the post of Director (Finance) in the corporation. 50. In the case in hand, not only the respondent No. 6 had been inducted to service (B) professedly in public interest as disclosed as Registrar in the Department of Medicine by the notification dated 39/1977, he was eventually confirmed in the said post w.e.f. 1.9.1986. Not only his transition to service (B) can, therefore, be construed to be on deputation and his confirmation as above connotes his assimilation therein for all intents and purposes. The pleas to the contrary therefore do not commend for acceptance and are therefore rejected. Qua the elevation of the parties to the next higher rank of Assistant Professor, the petitioner has asserted that the respondent No. 6's initial promotion thereto under Regulation 4(d) has been transgressive of the promotional quota enumerated in the office memorandum dated 6.3.1984 and even assuming it was not so he had assumed charge of the said post on 27.11.1990 against an available vacancy and, therefore, the services purportedly rendered by him prior thereto cannot be reckoned to compute his seniority at that level. According to the petitioner, the regularization of the promotion of the respondent No. 6 in the said post is also non est in law for the omission of his interview by the Commission. According to the petitioner, the regularization of the promotion of the respondent No. 6 in the said post is also non est in law for the omission of his interview by the Commission. The petitioner has pleaded that a post of Assistant Professor of Medicine (T.B.) having been transferred from the Assam Medical College to the Gauhati Medical College by letter No. HLB.601/88/151 dated 27.11.1990, the respondent No. 6 having been posted against it on the even date, he could at best for all practical purposes, even if his promotion thereto is assumed to be legal can be said to have taken over charge thereof on that date. The petitioner's plea is that as the two posts of Assistant Professor as advertised by the commission on 17.1.1987 which arose in the year 1987 were to be filled up by direct recruitment, in terms of the office memorandum dated 6.3.1984, the two other posts were to be filled up by promotion under Regulation 4(d). This the petitioner has assumed as if two vacancies have been earmarked to be filled up by direct recruitment there essentially has to exist be four vacancies for the same year as comprehended by the aforementioned office memorandum. His grievance is that though strictly in conformity with the mandate of the said office memorandum after filling up of the two vacancies identified for the promotees by Dr. Hitendra Kr. Das and Dr. Inamul Hussain who at the relevant point of time had been serving in the said post under Regulation 3(f), he and Dr. D.J. Bora ought to have been recruited against the two advertised posts meant for direct recruitments, they having been duly recommended as the first and second nominees by the commission respectively. Instead the respondent No. 6 and Dr. Ganesh Ch. Pathak were accommodated against those. Thereby, as contended by him, not only the quota rule prescribed by the aforementioned office memorandum stood violated, his induction to a post in the said rank also got deferred till 18.1.1988. 51. Instead the respondent No. 6 and Dr. Ganesh Ch. Pathak were accommodated against those. Thereby, as contended by him, not only the quota rule prescribed by the aforementioned office memorandum stood violated, his induction to a post in the said rank also got deferred till 18.1.1988. 51. The State respondents though in their first affidavit endorsed the applicability of the office memorandum dated 6.3.1984, to govern the mode and method of recruitment to the cadre of Assistant Professor in absence of any statutory rules, contending that the promotion of the respondent No. 6 had been in excess of the promotional quota thereby, in their next affidavit, they vouched against any irregularity of his promotion and also pleaded against any undue favour to him as alleged by the petitioner. The respondent No. 6 as well while endorsing the validity of his promotion to the post Of Assistant Professor under Regulation 4(d) and eventual regularization thereof, pleaded against the contention that he had continued in the said post before such regularization on ad hoc basis. While iterating that his regularization was consequent upon the recommendation of the commission, this respondent identified the two posts advertised to be those occurring in the year 1985 due to the promotion of Dr. S. Umar and Dr. Munindra Chandra Dutta against which Dr. Hitendra Kr. Das and Dr. Inamul Hussain were temporarily appointed under Regulation 3(f) vide notifications dated 3.1.1985 and 11.10.1985. According to this respondent, the advertisement dated 17.1.1987 was in continuation of the earlier dated 11.11.1986 published by the commission for filling up two posts by direct recruitment. These two vacancies being relatable to the year 1985, the respondent has pleaded, have no nexus with those of the year 1987. While denying that his promotion had been in excess of the promotional quota as alleged, it has been averred that judged by the dates of promotion/recruitment he is obviously senior than the petitioner. As alluded hereinabove, having regard to the facts pleaded in the writ petition on the issue and the supplementation thereof by the parties by way of response and clarifications, I am not inclined to sustain the plea of want of pleadings. The foundation of the challenge of the petitioner in this regard having laid in the writ petition, I feel persuaded to examine the issue on merits. 52. The foundation of the challenge of the petitioner in this regard having laid in the writ petition, I feel persuaded to examine the issue on merits. 52. To start with, the office memorandum dated 6.3.1984 is admittedly not a statutory Rule and, therefore, as such does not vest any enforceable right though assuredly the same enjoins a code to be observed in the matters pertaining thereto. A bare look at the notification dated 4.1.1992 whereby the promotion to the post of Assistant Professor of Medicine had been regularized, discloses that the incumbents at Sl. No. 3, 4, 5 and 6 had been initially inducted thereto under Regulation 4(d) by notifications dated 4.6.1987, 17.6.1987 and 18.6.1987 i.e., in the year 1987. The respondent No. 6 in particular by the notification dated 18.6.1987 was promoted temporarily to this post for a period of one year under Regulation 4(d) w.e.f. the date of taking over charge and was thereby posted at the Gauhati Medical College, Guwahati, vice Dr. Hitendra Kr. Das transferred. The advertisement dated 17.1.1987 (Annexure 45 to the writ petition) indicates a re-enactment of an earlier exercise to fill up two temporary posts of Assistant Professor of Medicine by direct recruitment. This advertisement nomenclatured as "re-advertisement" had been after the abandonment of the earlier endeavour vide advertisement No. 3/86 published on 11.11.1986. Candidates who had responded to the earlier advertisement were exempted from applying again. This document, therefore, is clear attestation of the fact that the vacancies in the posts involved therein had not occurred in the year 1987. The application of the office memorandum dated 6.3.1984 by construing these vacancies to be of the year 1987 thus cannot be visualized or inferred. 53. Having regard to the rival versions of the parties it cannot be irrefutably held that the promotion of Dr. Hitendra Kr. Das and Dr. Inamul Hussain though made in the year 1987 had been against the vacancies of that year and otherwise earmarked to be filled up by direct recruitment. In the face of the text of the re-advertisement and the background of the initial appointments of these two incumbents in these posts under Regulation 3(d), the charge of incursion of the direct recruitment quota by effecting promotions of Dr. Ganesh Ch. Pathak and respondent No. 6 cannot be sustained. The notifications dated 7.4.1987, 17.6.1987 and 18.6.1987 promoting Dr. Hitendra Kumar Das, Dr. Inamul Hussain, Dr. Ganesh Ch. Pathak and respondent No. 6 cannot be sustained. The notifications dated 7.4.1987, 17.6.1987 and 18.6.1987 promoting Dr. Hitendra Kumar Das, Dr. Inamul Hussain, Dr. Ganesh Ch. Pathak and the respondent No. 6 per se, therefore, do not appertain to the vacancies occurring in the year 1987 in infringement of the office memorandum dated 6.3.1984. Not only these promotions, more particularly that of Dr. Ganesh Chandra Pathak and respondent No. 6 have remained unchallenged thereafter for nearly two decades, for want of adequate pleadings to unerringly mark the provenance of the vacancies, it is not feasible to decipher the number as well as their quota wise nomenclature to uphold the petitioner's challenge. Not only in the eventual premise, as obtained in the instant case, in this regard, the plea of the respondent No. 6 cannot be brushed aside as absurd, the promotions of the incumbents named hereinabove when viewed in the attendant backdrop cannot be denounced to be detective therefrom. Incidentally the petitioner in his representation dated 10.7.2003 addressed to the Chief Secretary of the State had inter alia stated that no direct recruitment to the post of assistant professor had been made based on selection by the commission in 1987 as well in the three preceding years. The contention raised on behalf of the respondent No. 6 urging breach of the quota rule thus proclaiming that the office memorandum dated 6.3.1984 had been consciously forsaken and/or had broken down, thus, is convincing. 54. The notification, promoting the respondent No. 6 as assistant professor, admittedly, seeks to give effect thereto from the date of taking over charge thereof by him. He was thereby posted at Gauhati Medical College vice Dr. Hitendra Kumar Das transferred therefrom. The letter No. HLB.372/87/Pt-III/6 dated 10.7.1987 addressed to the Accountant General, Shillong by the Joint Secretary to the Government of Assam, Health and Family Welfare (U) Department, produced in course of the arguments acknowledge the assumption of charge of this post by the respondent No. 6 on 22.6.1987. Thereby, the Accountant General, Assam, was requested to issue the pay slip to him as Assistant Professor of Medicine on the basis of his joining report w.e.f. the aforesaid date. The letter discloses that Dr. Hitendra Kumar Das, Assistant Professor under order of transfer at the relevant time was on vacation w.e.f. 22.6.1987. Thereby, the Accountant General, Assam, was requested to issue the pay slip to him as Assistant Professor of Medicine on the basis of his joining report w.e.f. the aforesaid date. The letter discloses that Dr. Hitendra Kumar Das, Assistant Professor under order of transfer at the relevant time was on vacation w.e.f. 22.6.1987. The notification No. HLB.601/85/151Sdated 27.11.1990 (Annexure 19 to the writ petition) inter alia indicates that in the meantime the respondent No. 6 had been transferred in the same capacity to the Assam Medical College, Dibrugarh, vide the notification No. 601/88/144 dated 6.11.1990 referred to therein. Thereby he was posted as Assistant Professor of T.B., Gauhati Medical College, Guwahati, w.e.f. the date of taking over charge till 31.3.1991. This post of Assistant Professor, T.B., as the official communication No. HLB.601/88/151 dated 27.11.1990 of the Under Secretary to the Government of Assam, Health and Family Welfare (B) Department reveals had been transferred from the Assam Medical College to the Gauhati Medical College in the interest of public service. The notification No. HLB.601/88/156 dated 11.1.1991 (Annexure 20 to the writ petition) discloses that the respondent No. 6 thereby was posted as Assistant Professor of Medicine, Gauhati Medical College, Guwahati on the transfer of Dr. H.K. Das, Assistant Professor from the date of taking over charge and until further orders. This notification further reveals that the post of Assistant Professor, T.B., Assam Medical College, Dibrugarh, had been re-transferred to the Assam Medical College, Dibrugarh, on the same date. Though the petitioner has assiduously endeavoured to brand these notifications as overzealous initiatives on the part of the State authorities to accommodate the respondent No. 6 at Guwahati and the official respondents as well are not candid about the reason therefor, in the face of the disclosures in the letter dated 10.7.1987 referred to hereinabove, I do not feel persuaded to draw any adverse inference of the kind as suggested. All these steps in the conduct of the affairs of related services have remained unquestioned all these years and it is, therefore, too late in the day to presume complicity of the administrative authorities in favour of the respondent No. 6 to the prejudice of the petitioner. All these steps in the conduct of the affairs of related services have remained unquestioned all these years and it is, therefore, too late in the day to presume complicity of the administrative authorities in favour of the respondent No. 6 to the prejudice of the petitioner. The initial promotion of respondent No. 6 as Assistant Professor having been regularized on the recommendation of the commission as is evidenced from the notification No. HLB.707/89/40 dated 4.1.1992, the services rendered by him prior thereto in the said post cannot be termed as fortuitous to deny him seniority on the basis thereof. The assailments pertaining to the promotion of the respondent No. 6 to the post of Assistant Professor, therefore, cannot be sustained. That any order of the executive authority takes effect only from the date it is communicated to the person concerned or is otherwise published has been sought to be underlined by relying on the decision in State of Punjab v. Amar Singh Harika (supra). To drive home the point that the appointment w.e.f. the date of assumption of charge of the post involved would be effective only when the person appointed assumes the charge thereof, the decision of the Apex Court in Amarjit Singh Ahluwalia v. State of Punjab AIR 1975 SC 984 , has been relied upon. While there is no reservation on the verity of these propositions the same in the facts of the instant case do not advance the case of the petitioner. 55. The decision of the Apex Court in Keshab Ch. Joshi (supra), to the effect that the period of officiation of the post following an appointment not in accordance with the relevant rules cannot be reckoned for the purpose of seniority also has no application in the case in hand, the commission having recommended the regularization of the appointment of the respondent No. 6 to the post of Assistant Professor w.e.f. the date of his initial induction thereto under Regulation 4(d). 56. On the other hand the enunciation in G.S. Lamba (supra), that if consequent upon large scale deviations from the prescribed quota rule it breaks under its own weight whereupon it would be unfair and unjust to give effect to the related quota rule of seniority, is seemingly of considerable significance. 56. On the other hand the enunciation in G.S. Lamba (supra), that if consequent upon large scale deviations from the prescribed quota rule it breaks under its own weight whereupon it would be unfair and unjust to give effect to the related quota rule of seniority, is seemingly of considerable significance. Not only the pleadings are conspicuously silent on the essential facts bearing on the implementation of the quota rule envisaged in the office memorandum dated 6.3.1984, the petitioner in his representation dated 10.7.2003 in particular has admitted departure therefrom at least from the year 1983-84. Moreover as determined hereinabove, the office memorandum dated 6.3.1984, as such has no pertinence vis-a-vis the post of Assistant Professor of Medicine to which the respondent No. 6 had been promoted. The impeachment of the respondent No. 6's promotion to this post and consequential seniority on the basis of the commission's recommendation thus cannot be upheld. 57. The next lap of the litigational pursuit pertains to the post of Associate Professor. The promotion of the respondent No. 6 thereto has been impugned for having been made without finalizing the inter se seniority between him and the petitioner. Contending that the respondent No. 6, thereafter, could not take over charge of the said office before 10.11.1994/8.2.1995, regularization of his promotion w.e.f 2.8.1994 has also been repudiated as illegal and inspired by co-lateral considerations. The said respondent had been promoted to the aforementioned post by notification dated 30.7.1994 under Regulation (d) and was regularized therein from the date of taking over the charge by notification dated 29.12.1998. The parties are seriously at issue on the date of this event, which tilted the seniority of the respondent No. 6, in this post in his favour and paved the way eventually for his anoinment as the Head of the Department of Medicine. 58. The respondent No. 6, while contending that the gradation list published on 25.1.1988 portraying him to be senior to the petitioner had become final, has asseverated that his promotion to the post of Associate Professor of Medicine, which he joined on 2.8.1994 could not be jettisoned on the ground of non-fixation of inter se seniority between them. Admitting that he had been promoted to the post of Associate Professor of Medicine, GMCH falling vacant due to the elevation of its earlier incumbent, Dr. Admitting that he had been promoted to the post of Associate Professor of Medicine, GMCH falling vacant due to the elevation of its earlier incumbent, Dr. H.K. Das to the post of Professor of Medicine under Regulation 4(d), who did not immediately join the same at the Assam Medical College at Dibrugarh, he has averred that subsequent thereto, by notification dated 20.10.1994, Dr. N.N. Medhi, Professor of Medicine, GMCH having been transferred to the Assam Medical College, Dr. H.K. Das was accommodated in the said post on 20.10.1994. It was for this reason, according to him, he (respondent No. 6) was shown to have been promoted to the post of Associate Professor of Medicine GMCH by the notification dated 20.10.1994. As he had in fact joined the post on 2.8.1994 by taking unilateral charge, to regularize the exercise, a post of Associate Professor of Medicine at Assam Medical College, Dibrugarh had to be transferred to the Gauhati Medical College for the period 2.8.1994 to 10.11.1994. 59. The petitioner, in refutation, has reiterated that Dr. H.K. Das not having, moved to the Assam Medical College, Dibrugarh, on his promotion as Professor of Medicine thereat, the respondent No. 6 could not join the post of Associate Professor at GMCH and, accordingly, the notification dated 20.10.1994 promoting him thereto had to be issued. The steps adopted by the State authorities to draw a post of Associate Professor, Assam Medical College to the GMCH from 2.8.1994 to 10.11.1994, the petitioner has avowed, is a partisan gesture to favour him, though not entitled. 60. That the promotion of the respondent No. 6 to officiate as, Associate Professor of Medicine under Regulation 4(d), was to have effect from the date of taking over charge, is a matter of record. He was thereby supposed to assume the post hitherto held by Sri H.K. Das, who by another notification of the same date had been promoted as Professor of Medicine under the same provision of the Regulations and was posted at Assam Medical College, Dibrugarh. Following the transfer of Dr. N.N. Medhi, Professor of Medicine, GMCH, Guwahati by notification dated 20.10.1994, Dr. H.K. Das, was allowed to officiate in the said capacity w.e.f the date of his taking over charge and was posted at the Guwahati Medical College, Guwahati by another notification of the same date. Following the transfer of Dr. N.N. Medhi, Professor of Medicine, GMCH, Guwahati by notification dated 20.10.1994, Dr. H.K. Das, was allowed to officiate in the said capacity w.e.f the date of his taking over charge and was posted at the Guwahati Medical College, Guwahati by another notification of the same date. This was in cancellation of his earlier notification dated 10.8.1994 promoting him to the said post. The respondent No. 6 as well in supersession of the earlier notification dated 30.7.1994 was promoted as Associate Professor of Medicine, GMCH from the date of his taking over charge thereof and was posted at the same place. This notification dated 20.10.1994 pertaining to the respondent No. 6 came to be cancelled by another notification dated 8.2.1995, whereby, the earlier notification dated 30.7.1994 was resurrected. As this notification discloses, the Accountant General of Assam was also intimated of this development. Incidentally, the official communication dated 8.2.1995 (Annexures 27 & 28 of the writ petition), divulges that the Governor of Assam was pleased to allow the respondent No. 6 to join the post of Associate Professor of Medicine, GMCH w.e.f. 2.8.1994 against the post of Associate Professor of Medicine transferred from Assam Medical College, Dibrugarh vide letter No. HLB.233/94/49 dated 8.2.1995 and to function against the same up to 10.11.1994. This letter addressed to the Accountant General of Assam required the said authority to ensure drawal of the pay and allowances of respondent No. 6 for the aforementioned period. Thereby, the said respondent was also required to take over charge of the post of Associate Professor of Medicine, GMCH, Guwahati since vacated by Dr. H.K. Das w.e.f. 11.10.1994. The fact that a post of Associate Professor of Medicine was withdrawn from the Assam Medical College, Dibrugarh to the Gauhati Medical College and Hospital, Guwahati for the period 2.8.1994 to 10.11.1994 so as to enable the respondent No. 6 to assume the charge of the said Office, is evident from the letter No. HLB.234/94/49 dated 8.2.1995. The petitioner, in the meantime, by notification dated 26.10.1994 had also been promoted temporarily to officiate as Associate Professor of Medicine under Regulation 4(d) with effect from the date of taking over charge and was posted at Gauhati Medical College and Hospital, Guwahati. The petitioner, in the meantime, by notification dated 26.10.1994 had also been promoted temporarily to officiate as Associate Professor of Medicine under Regulation 4(d) with effect from the date of taking over charge and was posted at Gauhati Medical College and Hospital, Guwahati. Subsequent thereto, the promotions of the petitioner and the respondent No. 6 to the above post were on the recommendation of the commission regularized with effect from the date of taking over charge, which for the petitioner unquestionably, is 26.10.1994. 61. To bolster his plea qua the date of assumption of the Office of the Associate Professor of Medicine, GMCH, Guwahati by the respondent No. 6, the petitioner has annexed a copy of the certificate of transfer of charge dated 14.2.1995 indicating that it was occasioned on 10.11.1994. As against this, Annexure-IV to the rejoinder filed by the respondent No. 6, is a copy of certificate of transfer of charge dated 2.8.1994, disclosing that he (respondent No. 6) had assumed the charge of the Office of the Associate Professor of Medicine, GMCH, Guwahati on that date pursuant to the notifications No. HLB.233/94/16 and HLB.233/94/17 dated 30.7.1994. This document, however, is sans the signature of the Officer relieved suggesting prima facie that the charge was taken unilaterally by the respondent No. 6, as pleaded by him. By his letter dated 2.8.1994 as well, the respondent No. 6 intimated the Secretary, Government of Assam, Health and Family Welfare Department, about his assumption of the charge of the above post unilaterally because of non-cooperation of Dr. H.K. Das, who had meanwhile, been promoted as Professor of Medicine, Assam Medical College, Dibrugarh. Thereby, this respondent requested the aforementioned State authority to accept his unilateral joining of the post so as to obviate the possibility of his loss of seniority any other consequential service benefits in the promotional post. The respondent No. 6, followed up the issue by his representation dated 21.9.1994 (annexure-VI to his rejoinder). In course of the, arguments, a copy of the pay/leave salary slip No. GE.XI/Ps/2007-10 dated 1.12.1994 had been produced to authenticate the receipt of the pay scale of Associate Professor by the respondent No. 6 w.e.f. 2.8.1994. This, understandably, is to reinforce his contention of having taking over charge of the said post on 2.8.1994 and acceptance thereof by the concerned State authorities. This, understandably, is to reinforce his contention of having taking over charge of the said post on 2.8.1994 and acceptance thereof by the concerned State authorities. Though, the notification dated 20.10.1994 superseding the one dated 30.7.1994 promoting the respondent No. 6 as associate Professor under Regulation 4(d) and the certificate of transfer of charge dated 14.2.1995 read in isolation seems to corroborate the petitioner's plea, the documents referred to hereinabove and furnished by the respondent No. 6 as well as the pay slip issued from the office of the Accountant General of Assam cannot be written off, more particularly, has the authenticity thereof as not been questioned. The certificate of transfer of charge dated 218.1994 substantiates the respondent No. 6's contention of having taken over the unilateral charge of the post of Associate Professor of Medicine, GMCH, Guwahati on that date. 62. The State respondents, in their affidavit dated 31.7.2006, have admitted that he had joined as Associate Professor on that date pursuant to the promotion notification dated 30.7.1994. The pay/leave salary slip dated 1.12.1994 issued by the Office of the Accountant General, Assam also testifies the above. There is nothing on record to unequivocally demonstrate that the respondent No. 6 had not in fact rendered his services as Associate Professor of Medicine on 2.8.1994. The documents produced by the respondent No. 6 in affirmation of his plea of the date of assumption of the charge of the Office of the Associate professor of Medicine are not anachronistic. 63. On a cumulative consideration of the relevant pleadings and the documents referred to hereinabove, the plea of assumption of charge of the aforementioned post by the respondent No. 6 on 10.11.1994 cannot be held to have been conclusively established. The certificate of transfer of charge dated 14.2.1995 cannot be conceded a primacy over the other contemporaneous documents to sustain the assertions of the petitioner. The letters dated 8.2.1995, which demonstrate that a post of Associate Professor of Medicine had been transferred from the Assam Medical College, Dibrugarh to Gauhati Medical College, Guwahati for the period of 2.8.1994 to 10.11.1994 so as to enable the respondent No. 6 to serve against the same, per se, therefore, cannot dislodge the other documents on record to return a finding that he had irrefutably assumed the charge of the said post on 10.11.1994 or 8.2.1995, as the case may be. These letters though, are demonstrative of enthusiastic remedial steps in favour of the respondent No. 6 do not ipso facto in the attendant facts and circumstances render his promotion to the post illegal and non est in law. It is not unlikely as Dr. H.K. Das, in spite of his promotion as Professor tarried at Gauhati Medical College, Guwahati initiatives as above, had been taken by the departmental authorities to ease the imbroglio and obviate possible injustice and complications qua the respondent No. 6. As it is, abolition/creation and/or addition of posts or configuration of a cadre temporary or permanent is the prerogative of the executive, the measures adopted as attested by the letter dated 8.2.1995, in absence of any overwhelming and convincing proof of mala fide cannot, in the estimate of this Court, be repudiated to be unduly and fondly propitious to the respondent No. 6 to further his career prospects. Promotion of the parties, having been regularized on the recommendation of the commission, viewed from the dates on and from which they had taken over charge of the promotional post, the respondent No. 6 has to be construed to be senior to the petitioner as Associate Professor of Medicine. The assertion to the contrary, therefore, cannot be sustained. 64. The petitioner and the respondent No. 6 were next promoted as Professor of Medicine under Regulation 4(d) on 17.2.1997 and 30.1.1996 from the date of taking over charge and were posted at Gauhati Medical College, Guwahati. According to the petitioner, the promotion of the respondent No. 6 has been de hors any consideration of merit and inter se seniority between them. It is his plea that the regularization of such promotion w.e.f. 2.8.1998 is also illegal and that the services rendered by the respondent No. 6 for the period from 30.1.1996 to 2.8.1998, cannot be counted for the purpose of his seniority in the said post. The claim of the respondent No. 6 of having joined the post of the Associate Professor of Medicine on 2.8.1994 has been upheld as hereinabove. In terms of the recommendations of the Medical Council of India, the qualifying length of service in the post Associate professor equivalent to that of reader is four (4) years for the incumbent to be eligible for promotion as Professor. In terms of the recommendations of the Medical Council of India, the qualifying length of service in the post Associate professor equivalent to that of reader is four (4) years for the incumbent to be eligible for promotion as Professor. The promotion of the respondent No. 6 as Professor, was regularized by the notification dated 8.6.2001 (Annexure 32 to the writ petition) w.e.f. 2.8.1998 i.e., on completion of four years of teaching experience associate Professor of Medicine. Similarly that of the petitioner was regularized w.e.f 27.10.1998, on the same measure counted from 20.10.1994. Reckoned from the dates of such regularization the respondent No. 6, apparently is senior to the petitioner as Professor of Medicine. The regularization being consequent upon the recommendation of the commission, the petitioner's plea for exclusion of the respondent No. 6's services from 30.01.1996 to 2.8.1998 is of no relevance, seniority of the parties being assessable in the post of Professor from the dates of their regularization. This as well, is the mandate of the relevant regulations of the Medical Council of India. Judged by the yardstick, the decision to vest the mantle of the head of the Department of Medicine on respondent No. 6 cannot as such be faulted with. The challenge to his initial promotion as Professor for want of merit and non-finalization of seniority, in the face of the recommendation of the commission as well as the view taken viz-a-viz the post of Associate Professor of Medicine thus does not commend for endorsement. 65. The petitioner, though assertive against the finalization of inter se seniority with the respondent No. 6 has not been able to demonstrate his objections to the provisional seniority list dated 25.1.1998 and 21.1.1995 prior to his representation on 20.1.2003. In the former, the respondent No. 6 was shown to be holding the post of Assistant Professor under Regulation 4(d) and the petitioner as Demonstrator of Social and Preventive Medicine, both being regularized in their substantive posts in 1.9.1986, their dates of entry in service were recorded as 23.3.1977 and 3.7.1979 respectively. The petitioner was, thus, shown to be junior by that norm to the respondent No. 6. In the inter se seniority list dated 21.1.1995 the respondent No. 6 and the petitioner were placed at Sl. No. 20 & 21, with their dates of promotion as Assistant Professor enumerated as 22.6.1987 and 23.1.1988. The petitioner was, thus, shown to be junior by that norm to the respondent No. 6. In the inter se seniority list dated 21.1.1995 the respondent No. 6 and the petitioner were placed at Sl. No. 20 & 21, with their dates of promotion as Assistant Professor enumerated as 22.6.1987 and 23.1.1988. Both these documents prescribed a time limit of 30 days for offering objection to the inter se seniority position as reflected on the efflux whereof, the same was to be treated as final. The State respondents have assumed a vacillating stand in their pleadings. In that view of the matter, the remark in the promotion order of the petitioner to the post of Associate Professor of Medicine and of the respondent No. 6 as Professor of Medicine that the inter se seniority would be fixed later on, when juxtaposed with this background together with their ultimate regularization acting on the recommendations of the commission is of no decisive significance. From the facts demonstrable by the records, as available with this Court, the respondent No. 6 has to be held senior to the petitioner in the ranks of Registrar, Assistant Professor, Associate Professor as well as Professor of Medicine. The contention to the contrary fails and is rejected. 66. The process undertaken at the appropriate administrative level in response to the petitioner's representations commencing from 20.1.2003 in view of the determinations made hereinabove, is resultantly not of any definitive relevance. However, the parties having arduously argued on the related issues on merits before this Court, a brief reference thereto is warranted in the context of the cavil against non-implementation of what the petitioner perceives to be a decision arising therefrom. The official records being File No. HLB. 137/94 and HLB.435/2005 of the Health Department (B) Branch, disclose that the exercise commenced on the receipt of the petitioner's representation dated 20.1.2003. After wafting through various bureaucratic formalities the issue came to be scrutinized by the then Chief Secretary of the State, who by his note dated 19.10.2004 recommended the petitioner's seniority over that of the respondent No. 6, so much so to be appointed as the Head of the Department of Medicine, GMC, Guwahati following correction of the provisional gradation list(s). After wafting through various bureaucratic formalities the issue came to be scrutinized by the then Chief Secretary of the State, who by his note dated 19.10.2004 recommended the petitioner's seniority over that of the respondent No. 6, so much so to be appointed as the Head of the Department of Medicine, GMC, Guwahati following correction of the provisional gradation list(s). In the meantime, as the office notes reveal, following dissensions in some quarters, the opinion of the Advocate General of the State had been sought for, which in fact was furnished on 21.4.2004 by the then Addl. Advocate General of the State. The esteemed law officer of the State sustained the seniority of the respondent No. 6 above the petitioner with the view that after a lapse of so many years, the matters already finalized, ought not to be reopened. It transpires from the opinion so offered that an adequate survey of relevant facts and the law involved was painstakingly made. 67. The Chief Secretary of the State in his note, while noticing that "intra-departmental transfer" had been taking place from Health A to Health B department although restrictions were imposed by the office memorandum dated 14.8.1987, concluded that no large scale migration, however, had occurred and such individual cases were exceptions. He concluded against the seniority of the respondent No. 6 over the petitioner as Registrar, observing that his mere confirmation as such did not entitle him to that edge. According to him, the fact that the respondent No. 6 had earned promotions earlier than the petitioner also could no bestow superior seniority in his favour. The State authority observed that as the respondent No. 6 had not been recommended by the commission for appointment as the Registrar of Medicine in the Medical Colleges of the State, appointment of the petitioner through a regularly undertaken process though subsequent the respondent No. 6, cannot claim to be senior to the latter. 68. The administrative authority in recording those observations missed the fact that the respondent No. 6 had been selected by the commission for his appointment as Medical and Health Officer-1 in Service "A" and that no complaint whatsoever had ever been made about the equivalence of this post with that of the Registrar or any other post in the same grade. The administrative authority in recording those observations missed the fact that the respondent No. 6 had been selected by the commission for his appointment as Medical and Health Officer-1 in Service "A" and that no complaint whatsoever had ever been made about the equivalence of this post with that of the Registrar or any other post in the same grade. The view of the said authority that the petitioner's impeachment of the seniority of the respondent No. 6 and his installation as the Head of the Department of Medicine, could not be neutered on the ground of delay overlooks the march of events including the publication of provisional seniority lists inviting objections thereto and a series of decisions in the matter of career advancement of the parties by acting thereon. The fact that the petitioner had not voiced his objection against any of this seniority lists, which consistently depicted him to be the junior to the respondent No. 6, was also left out of consideration. The proposition of the Chief Secretary construing the petitioner's representations to be appeals under the Assam Services (Discipline and Appeal) Rules, 1964 ('the Rules') is also in the estimate of this Court untenable,, the same in fact being not so. No prayer for condonation of delay (Rules having provided a period of limitation therefore) had also been made by the petitioner at any point of time. Reference to Rule 26 of the said Rules which deal with the power of review of the Governor of State is also misplaced. Having regard to the nature of the proceedings, by no means, the power conferred by the above provision of the Rules could have been invoked by the Chief Secretary of the State. The Commission, in particular, having abstained from participating in the proceedings before this Court the assertion that it did not recommend the respondent No. 6 for the post of Registrar of Medicine, made in the note dated 19.10.1994 against him also is unacceptable. The conclusion of the State authority about breach of quota rule envisaged by the office memorandum dated 6.3.1984 also disregards vital facts about the vacancies in the post of Assistant Professor, which occurred in the year 1985, but filled up in the year 1987 on promotion by Dr. I. Hussain and Dr. H.K. Das. The conclusion of the State authority about breach of quota rule envisaged by the office memorandum dated 6.3.1984 also disregards vital facts about the vacancies in the post of Assistant Professor, which occurred in the year 1985, but filled up in the year 1987 on promotion by Dr. I. Hussain and Dr. H.K. Das. Admittedly, none of the parties had been offered any opportunity of participation in the process administered by the Chief Secretary of the State and having regard to the fact that the issues scrutinized were of vital significance viz-a-viz their service careers, which over the years have assumed final dimensions, in the opinion of this Court, the demur of violation of the principles of natural justice also cannot be trivialized. 69. As the recommendations made in the note dated 19.10.2004, are visibly detrimental to the respondent No. 6, the import of useless formality theory in this regard as referred to in Aligarh Muslim University (supra), is out of place. The assertion that the same view was concurred by the next incumbent in Office and approved by the departmental Minister and the Chief Minister of the State, is not of any determinative worth, amongst others, for want of appropriate rescrutiny of all relevant facts. Noticeably, no new material other than those made available to this Court seems to have been taken note of by the State authorities. The opinion of the Addl. Advocate General of the State as alluded hereinabove, was also not considered on the ostensible ground that the same had not been furnished. The findings recorded by the Chief Secretary of the State at the first instance are not backed by convincing and persuasive reasons. The determinations made vide the note dated 19.10.2004 on merits as well, do not deserve judicial imprimatur and, therefore, the exhortion for implementation thereof, is of no avail. The authorities cited at the Bar in this regard, therefore, do not call for any dilation. 70. On a totality of the considerations scripted hereinabove, I am of the unhesitant opinion that the impugnment laid in the instant petition lack in substance and are, therefore, negated. The writ petition fails and is dismissed. No costs. Petition dismissed.