JUDGMENT T. Nandakumar Singh, J. 1. By this writ petition, the petitioner is assailing the order of the Government of Manipur being No. 4(8)/3/93-SE(S) Pt.-III, dated the 6th July, 2004, for according approval to the re-designation of the lone post of Sports Promotion Officer of Educations) Department, Manipur, held by Shri M. Chourajit Singh (respondent No. 3), who is admittedly not eligible for the post of Joint Director (Physical Education) under the relevant Recruitment Rules framed by the Government of Manipur vide order No. 1/7/63-S, dated the 3rd July, 1963, as Joint Director (Sports/Physical) in his grade pay with immediate effect and until further orders in public interest. 2. Heard Mr. Kh. Tarunkumar, learned Counsel appearing for the writ petitioner. Also heard Mr. Y. Ashang, learned Government Advocate appearing for the respondent Nos. 1 and 2 as well as Mr. H.S. Paonam along with Mr. N. Jotendro, learned Counsels appearing for the respondent No. 3. Factual Background: 3. The petitioner is now serving as Physical Education Promotion Officer on regular basis in the Education Departments), Government of Manipur. The respondent No. 3 was initially appointed as a substituted teacher and his services was utilized in the Non Formal Education Unit of Directorate of Education(S), Government of Manipur. Later on, the respondent No. 3 was appointed as Assistant Graduate Teacher under the meritorious Sports Person Scheme vide order of the Director of Education(S), Government of Manipur being No. 5/30/78-ED, dated 1.6.1990 in the Kha-Imphal High School with effect from the date of joining his duty vice Smt. L. Sumati Devi appointed Lecturer and his (respondent No. 3) service is utilized in the Education Directorate until further order. Admittedly, the educational qualification of the respondent No. 3 is only a graduate and he has not undergone diploma course or degree course or post-graduate degree course in the discipline of sports and/or physical education from any recognized Institution. As stated above, the respondent No. 3 who has no specialization in physical education, was appointed as Assistant Inspector of Schools (Physical Education) by re-designating the post of Assistant Graduate Teacher held by the respondent No. 3 vide order of the Government of Manipur being No. 4(11)/19/91-SE(S), dated 13.12.1991. As stated above, the respondent No. 3 who has no specialization in physical education, was appointed as Assistant Inspector of Schools (Physical Education) by re-designating the post of Assistant Graduate Teacher held by the respondent No. 3 vide order of the Government of Manipur being No. 4(11)/19/91-SE(S), dated 13.12.1991. Thereafter, without considering other Physical Education Teachers or other qualified Assistant Inspector of Schools working in the Education Department(S), Manipur, in the name of streamlining the various physical education programmes in the Department of Educations), Manipur, the Governor of Manipur was pleased to re-designate the lone post of Assistant Inspector of Schools (Physical) held by the respondent No. 3 as Sports Promotion Officer with immediate effect in public interest vide order of the Government of Manipur being No. 11/2/95-SE(S), dated 27.05.1996. Again, in partial modification of the earlier order of the Government of Manipur, the Governor of Manipur was pleased to enhance the pay scale of Sports Promotion Officer of the Directorate of Education(S), Manipur from Rs. 6500-10500/- to Rs. 7500-12000/- per month w.e.f. 19.03.1999 with usual allowances as admissible under the Rules as per Manipur Services (Revised Pay) Rules, 1999 vide order of the Government of Manipur being No. 30/17/99-SE(S), dated 16.06.2000, w.e.f. 19.03.1999. It is clear that the respondent No. 3 who was initially appointed as Assistant Graduate Teacher, which is a non-gazetted post, had been promoted to the gazetted post, which could be filled up only through the DPC associated with the Manipur Public Service Commission by promotion or by direct recruitment through the Manipur Public Service Commission, by way of re-designation of the non-gazetted post and that the respondent No. 3 never faced any DPC associated with the Manipur Public Service Commission. 4. The respondent No. 3 who is only a Graduate having no diploma and/or degree or post-graduate degree in the discipline of sports and/or physical education, again picked up for appointing him to the Class-I Gazetted post of Joint Director (Sports/Physical) in the name of developing the sports and physical education of students of Manipur. 4. The respondent No. 3 who is only a Graduate having no diploma and/or degree or post-graduate degree in the discipline of sports and/or physical education, again picked up for appointing him to the Class-I Gazetted post of Joint Director (Sports/Physical) in the name of developing the sports and physical education of students of Manipur. For appointing the respondent No. 3 to the Class-I Gazetted post of Joint Director (Sports/Physical), the Government of Manipur had completely bypassed all the procedures prescribed by the law for appointment to the Class-I Gazetted post and also the Recruitment Rules for the post of Deputy Director of Education (Physical Education) prevailing in the Education Department, Government of Manipur, framed vide orders of the Administrator, Manipur (at the relevant time, the State of Manipur was the Union Territory) being No. 1/7/63-S, dated 3.7.1963. Under the said Recruitment Rules, the post of Deputy Director of Education (Physical Education) is to be filled up cent per cent by direct recruitment; the educational and other qualifications required for such direct appointments are: (i) at least 2nd Class Master's or equivalent of the recognized University; (ii) Degree/Diploma in physical education of the recognized University/Institution; (iii) five years experience of teaching and educational administration including about three years in a responsible administrative capacity; and (iv) knowledge of one of more local languages. 5. By an order of the Governor of Manipur being No. 30(8)/4/94- SE(S), dated 15.4.1995, the post of the Deputy Director in the Education Department (S), Government of Manipur had been re- designated as 'Joint Director' and since then all the erstwhile posts of Deputy Directors in the Education Department, Government of Manipur are now the Joint Directors. The posts of Joint Director in the Department of Education (S) are Class-I Gazetted posts and are within the purview of the Manipur Public Service Commission. By bypassing all the procedures prescribed by law for filling up the post of Joint Director, by the impugned order being No. 4(8)/3/93-SE(S) Pt.-III, dated 6.7.2004, the post of Sports Promotion Officer of Education (S) Department, Government of Manipur held by the respondent No. 3, is re-designated as Joint Director (Sports/Physical) in his grade pa immediate effect and until further orders in public interest. As stated above, the respondent No. 3 who was only Assistant Graduate Teacher (non- gazetted post) was appointed to the post of Sports Promotion Officer (Gazetted post) without subjecting him to any DPC associated with the Manipur Public Service Commission by re-designation and again by re-designation, vide the impugned order dated 06.07.2004, the respondent No. 3 was appointed to the Class-I Gazetted post i.e. the Joint Director (Sports/Physical) without subjecting him to any sort of DPC or recruitment test by the Manipur Public Service Commission. 6. After the respondent No. 3 was appointed by way of re-designation to the Class-I Gazetted post i.e. Joint Director (Sports/Physical), by completely bypassing all the prescribed procedures of law for appointment to the Class-I Gazetted post, the Government of Manipur issued an order being No. 10/3/2006-SE(S), dated 17.06.2006 and ordered the respondent No. 3 to undergo Study Leave for a period of one year for B.P.Ed. Training Course at the Regional College of Physical Education, Panisagar, North Tripura, commencing from 1st July, 2006. Under the prevailing Recruitment Rules for the post of Joint Director (Physical Education), essential qualification for appointment as stated above are 2nd class Master's degree or equivalent of the recognized University and degree/diploma in Physical Education of the recognized Institution and admittedly, the educational qualification of the respondent No. 3 is only a graduate and he has no diploma and/or degree in Physical Education. The respondent No. 3 who was ordered to undergo B.P.Ed. Training course for one year at the Regional College of Physical Education, Panisagar, North Tripura, vide order of the Government of Manipur dated 17.6.2006, could not even undergo the said training course and, accordingly, at the request of the respondent No. 3, the Government of Manipur issued an order being No. 10/3/06-SE(S), dated 04.08.2006 for cancelling the study leave of the respondent No. 3 for undergoing B.P.Ed. Training Course for one year at the Regional College of Physical Education, Panisagar, North Tripura with immediate effect. 7. The present writ petitioner-Shri L.W. Ananta was also ordered to undergo M.P.Ed. Training Course of 2 (two) years at the Degree College of Physical Education, Ambravati (MS) for the year 2006-07 vide orders of the Governor being No. 10/3/2006-SE(S), dated 28.06.2006; and the petitioner had successfully completed the course for Master Degree of Physical Education in First Division. 7. The present writ petitioner-Shri L.W. Ananta was also ordered to undergo M.P.Ed. Training Course of 2 (two) years at the Degree College of Physical Education, Ambravati (MS) for the year 2006-07 vide orders of the Governor being No. 10/3/2006-SE(S), dated 28.06.2006; and the petitioner had successfully completed the course for Master Degree of Physical Education in First Division. It is the case of the petitioner that he is eligible for appointment to the post of Joint Director (Physical Education) and/or Joint Director (Sports/Physical) in the Department of Education(S), Government of Manipur, 8. The Government of Manipur in the Commissioner (Education/S), Government of Manipur was requested to cancel the aforesaid appointment/s of the respondent No. 3 one after another from the non-gazetted post of Assistant Teacher without facing any DPC associated with the Manipur Public Service Commission or any sort of selection/recruitment test by the Manipur Public Service Commission and also by completely bypassing all the procedures prescribed by law for filling up the post of Class-I Gazetted post by the Director of Education(S), Government of Manipur under his letter being No. 2.6.2005-ED(S), dated 27.7.2005, which reads as follows: GOVERNMENT OF MANIPUR OFFICE OF THE DIRECTOR OF EDUCATION(S) No. 2.6.2005-ED(S) Imphal, the 27th July, 2005 To The Commissioner (Education/S), Government of Manipur. Subject: Re-designation of Post with incumbent. Sir, In continuation of this letter even No. dated 27th July, 2005 it is brought to the notice of the Government the following factual position relating to the re-designation of posts hold (SIC) by Shri M. Chourajit Singh one after another. 1. The post of Graduate Teacher held earlier by Shri M. Chourajit Singh was re-designated as A.I. of Schools (Physical Education) in the scale of pay of Rs. 1400-2600/- per month with incumbent Shri M. Chourajit Singh vide Government order No. 4(ii) 19/91- SE(S) dated 13.12.1991. However, there is no R/R for the post of A.I. of Schools (Physical Education) in the Department. Moreover, the post of A.I. & G/T are not identical & transferable inasmuch as the scale of A.I. is 1400-2600/- per month & that of G/T is 1400-2300/- p.m. at the time of issuing the order Redesignating post of G/T held by Shri M. Chourajit Singh as A.I.(Physical). As per R.O.P. 1st Amendment 1999 the post of G/T is in the scale of Rs. 4500-7000/- per month whereas that of A.I. is 6500-10,500/- per month. 2. As per R.O.P. 1st Amendment 1999 the post of G/T is in the scale of Rs. 4500-7000/- per month whereas that of A.I. is 6500-10,500/- per month. 2. The said A.I. of Schools (Physical Education) in the scale of pay Rs. 1400-2600/- per month was again re-designated as Sports Promotion Officer carrying the scale of pay of Rs. 1640-2900/- with incumbent Shri M. Chourajit Singh vide Government order No. 11/2/95-SE(S) dated 27.5.1996. There is no R/R for the said post of Sports Promotion Officer in the Department. 3. The scales of Pay Rs. 1640-2900/- per month of Sports Promotion Officer in which Shri M. Chourajit Singh was holding again upgraded in the scale of pay of Rs. 2000-3500/- per month vide Government order No. 11/2/95-SE(S) dated 19.3.1999. 4. Lastly, the lone post of Sports Promotion Officer held by Shri M. Chourajit Singh was again re-designated as Joint Director(Sports/Physical) in his grade pay with immediate effect and until further orders vide Government order No. 4(8)/3/93-SE(S) Pt-III dated 6.7.2004. From the above factual position, it is found that Shri M. Chourajit Singh who never face any DPC is now holding the higher post on Post upgradation/re-designation by passing all norms/eligibility/seniority. In this connection, it may be pointed out that the Government had issued order vide No. 4/2/90-SE(S) Pt. dated 26.11.2004 in 3 (three) posts of Jt. Director of Education where there is no incumbents have been down-sized and retain 4 (four) posts with new name as detailed below: 1. Jt. Director of Secondary Education (School) who will be in- charge of High School & Higher Secondary Schools. 2. Jt. Director of Primary & Elementary Education (School) who will be in-charge of Primary Elementary and Junior High Schools. 3. Jt. Director (Hindi Language, Tribal Dialects Literacy). 4. Jt. Director (Planning Science Education & Technology). Now, the question arrised as to whether the Post of Jt. Director (Sports/Physical) in which the Government had issued order No. 4(8)/3/93(S) Pt.-III dated 6.7.2004 allowing the resignation of the lone post of Sports Promotion Officer with incumbents Shri M. Chourajit Singh be covered as one of the Jt. Director of Education. Further there is only 4 (four) Joint Directors sanctioned by the Government. To increase 1 (one) more Jt. Director if an all desirable, it needs proper consideration and port is to be created and also R/R is to be framed. Director of Education. Further there is only 4 (four) Joint Directors sanctioned by the Government. To increase 1 (one) more Jt. Director if an all desirable, it needs proper consideration and port is to be created and also R/R is to be framed. Upgradation shall not be a means to topple the seniors in the seniority list as it was in the earlier experiment. This is a short cut method to by pass rules which shall not be encouraged. I am, therefore to request you kindly to cancel the Government order No. 4(8)/3/93-SE(S) dated 6.7.2004 so as to avoid any litigation on the matter at an early date. Yours faithfully Sd/- (Dr. Ch. Jayanta Singh) Director of Education(S) Government of Manipur 9. Contrary to the stand of the Director of Education(S), Government of Manipur under his said letter dated 27.7.2005, the Director of Education(S) (respondent No. 2 herein) along with the respondent No. 1, filed the Joint affidavit-in-opposition in the present writ petition. In their affidavit-in-opposition, no rational and reasonable explanations for appointment of the respondent No. 3 from the non-gazetted post to the Class-I Gazetted post i.e. Joint Director (Sports/Physical) by completely bypassing all the procedures prescribed by law by way of re-designation on different stages are mentioned but, the only explanation which is not at all plausible or rational is that the impugned order dated 6.7.2004 was issued as the Government took a decision to have one post of Joint Director (Sports/Physical) by re-designating the post of Sports Promotion Officer held by the respondent No. 3 in order to develop sports and physical education of the State of Manipur. 10. As stated above, for the sake of repetition, it is reiterated that the respondent No. 3 has no specialization in the discipline/subject of sports and physical education and that the respondent No. 3 has no diploma and/or degree in sports and/or physical education and also admittedly, in the Education Department, Government of Manipur, there are other Officers and/or employees who have specialization in the discipline of sports and physical education and degree and/or post-graduate degree in the discipline of sports and physical education. 11. The Apex Court in Union Territory of Chandigarh and Ors. v. Rajesh Kumar Basandhi and Anr., (2003) 11 SCC 549, held that a party cannot take a stand which becomes contrary to its own conduct. 11. The Apex Court in Union Territory of Chandigarh and Ors. v. Rajesh Kumar Basandhi and Anr., (2003) 11 SCC 549, held that a party cannot take a stand which becomes contrary to its own conduct. In the instant case, the Director of Education(S), Government of Manipur had taken the stand in the affidavit-in-opposition filed in the present writ petition contrary to the stand in his letter dated 27.07.2005, which is not permissible because of the ratio decidendi in Rajesh Kumar Basandhi's case (supra). 12. It is now so well settled law that the decision of the Government and/or policy decision of the Government cannot overrides the statute or statutory rules and for that settled law this Court is not required to burden itself by referring to the catena of decisions of the Apex Court. It would be suffice to cite one decision of the Apex Court in State of Orissa and Ors. v. Prasana Kumar Sahoo, AIR 2007 SC 2588 , wherein the Apex Court held that: Even a policy decision taken by the State in exercise of its jurisdiction under Article 162 of the Constitution of India would be subservient to the recruitment rules framed by the State either in terms of a legislative act or the proviso appended to Article 309 of the Constitution of India. A purported policy decision issued by way of an executive instruction cannot override the statute or statutory rules far less the constitutional provisions. (Ref.: Para 14 of the AIR in Prasana Kumar Sahoo's case (supra)). 13. In the case in hand, in the name of policy decision, the Government of Manipur issued the impugned order dated 6.7.2004 by completely bypassing the Rules framed by the Government of Manipur under the proviso to Article 309 of the Constitution of India for appointment to the Class-I Gazetted post and also Manipur Public Service Commission Regulation', different Manipur Public Service Commission (Amendment) Regulation as well as different Manipur Public Service Commission (Exemption from Consultation) Regulations. It is also settled law that valid Rules framed under the proviso to Article 309 of the Constitution of India operate so long as the Rules are repealed and replaced. (Ref.: Union of India, Through Government of Pandicherry and Anr., (2005) 8 SCC 394 ). 14. The Apex Court in Dr. D.C. Wadhwa and Ors. It is also settled law that valid Rules framed under the proviso to Article 309 of the Constitution of India operate so long as the Rules are repealed and replaced. (Ref.: Union of India, Through Government of Pandicherry and Anr., (2005) 8 SCC 394 ). 14. The Apex Court in Dr. D.C. Wadhwa and Ors. v. State of Bihar and Ors., AIR 1987 SC 579 (CB), held that: It is settled law that a constitutional authority cannot do indirectly what it is not permitted to do directly. If there is a constitutional provision inhibiting the constitutional authority from doing an act, such provision cannot be allowed to be defeated by adoption of any subterfuge. That would be clearly a fraud on the constitutional provision (Ref. : Relevant portion of para No. 7 of the AIR in Dr. D.C. Wadhwa's case (supra)). 15. The Apex Court in S. Pratap Singh v. State of Punjab, AIR 1964 SC 72 (CB), held that: ...The Constitution enshrines and guarantees the rule of law and Article 226 is designed to ensure that each and every authority in the State, including the Government acts bona fide and within the limits of its power and we consider that when a Court is satisfied that there is an abuse or misuse of power and its jurisdiction is invoked, it is Incumbent on the Court to afford justice to the individual. It is with these considerations in mind that we approach the facts of this case. [Ref.: Para 10 of SCC in S. Pratap Singh's case (supra)]. 16. Governmental action must be based on utmost good faith, belief and ought to be supported with reason on the basis of the state of law-if the action is otherwise or runs counter to the same the action cannot but be ascribed to be mala fide and it would be a plain exercise of judicial power to countenance such action and set the same aside for the purpose of equity, good conscience and justice. Justice of the situation demands action clothed with bona fide reason and necessities of the situation in accordance with the law. But if the same runs counter, law Courts would not be in a position to countenance the same. (Ref. : Para 34 of SCC in Tandon Brothers v. State of W.B. and Ors, (2001) 5 SCC 664 ). 17. Justice of the situation demands action clothed with bona fide reason and necessities of the situation in accordance with the law. But if the same runs counter, law Courts would not be in a position to countenance the same. (Ref. : Para 34 of SCC in Tandon Brothers v. State of W.B. and Ors, (2001) 5 SCC 664 ). 17. The doctrine of fairness and the duty to act fairly is a doctrine developed in the administrative law field to ensure the rule of law and to prevent failure of justice. It is a principle of good conscience and equity since the law Courts are to act fairly and reasonably in accordance with the law. Doctrine of unreasonableness is opposed to doctrine of fairness reasonableness will have its play, if allowed. (Ref. : Para 23 of SCC in Tata Iron & Steel Co. Ltd. v. Union of India and Ors., (2001) 2 SCC 41 ). 18. The Apex Court in Anil Ratan Sarkar and Ors. v. Hirak Ghosh and Ors., (2002) 4 SCC 21 , held that: The most accepted methodology of governmental working ought always to be fairness and in the event of its absence, law Courts would be within their Jurisdiction to deal with the matter appropriately. This proposition is so well settled that we need not dilate further on this.... (Ref.: Para 1 of SCC in Anil Ratan Sarkar's case (supra)) While a power has been conferred upon a higher authority, a presumption can be raised that he would be conscious of his duties and obligations and so would act promptly and reasonably. (Ref. : Para 43 of SCC in Papmsam Labour Union v. Madura Coats Ltd., (1995) 1 SCC 501 and Balaram Kumawat v. Union of India and Ors., (2003) 7 SCC 628 ). 19. In the case in hand, the concerned authority had completely negated the said presumption that the higher authorities would be conscious of their duties and obligations and so would act promptly and reasonably, inasmuch as the impugned order dated 6.7.2004 is not based on any rational foundation. This Court also reiterates that even orders passed by the executive have to be tested on the touchstone of reasonableness. This Court also reiterates that even orders passed by the executive have to be tested on the touchstone of reasonableness. On a bare perusal of the impugned order dated 6.7.2004 and the records produced by the learned Government Advocate, it is crystal clear that the impugned order dated 6.7.2004 is not based on any rational foundation. The Apex Court in Noida Entrepreneurs Association v. Noida and Ors. (2007) 10 SCC 385 , held that the orders passed by the executive have to be tested on the touchstone of reasonableness. The relevant portion of para Nos. 11 and 12 of SCC in Noida Entrepreneurs Association's case (supra) read as follows: 11. A bare perusal of the order which has been quoted in its totality goes to show that the same is not based on any rational foundation. The conceptual difference between a departmental enquiry and criminal proceedings has not been kept in view. Even orders passed by the executive have to be tested on the touchstone of reasonableness. [See Tata Cellular v. Union of India, (1994) 6 SCC 651 and Teri Oat Estates(P) Ltd. v. U.T., Chandigarh, (2004) 2 SCC 130 ]. The conceptual difference between departmental proceedings and criminal proceedings have been highlighted by this Court in several cases. Reference may be made to Kendriya Vidyalaya Sangathan v. T. Srinivas, (2004) 7 SCC 442 : 2004 SCC (L&S) 1011, Hindustan Petroleum Corporation Ltd. v. Sarvesh Berry, (2005) 10 SCC 471 : 2005 SCC (Cri) 1605 and Uttaranchal ETC v. Mansaram Nainwal, (2006) 6 SCC 366 : 2006 SCC (L&S) 1341. 12. The aforesaid position was also noted in State of Rajasthan v. B.K. Meena, (1996) 6 SCC 417 : 1996 SCC (L&S) 1455. 20. This Court can exercise the power of judicial review on the administrative actions in case there are arbitrariness and lack of reasonableness in issuing the administrative orders. The Apex Court in Man Singh v. State of Haryana, (2008) 12 SCC 331 , observed that: Any act of repository of power, whether legislative or administrative or quasi-judicial is open to challenge if it is so arbitrary or unreasonable that no fair-minded authority could even have ever made it. The concept of equality as enshrined in Article 14 of the Constitution, embraces the entire realm of State action. The concept of equality as enshrined in Article 14 of the Constitution, embraces the entire realm of State action. It would extend to an individual as well not only when he is discriminated against in the matter of exercise of right, but also in the matter of imposing liability upon him. The doctrine of equality is now turned as a synonym of fairness in the concept of justice and stands as the most accepted methodology of a government action. The administrative action is to be Just on the test of "fair play" and reasonableness. (Ref.: Para 20 of SCC in Man Singh's case (supra). 21. For the foregoing reasons and discussions, the impugned order dated 6.7.2004 passed by the Commissioner (Edn/S), Government of Manipur, is set aside. The writ petition is allowed accordingly. The parties are to bear their own costs. Petition allowed