1. Registered notices have gone to respondents 3 to 17, 19 to 22, 24 to 28, 30 to 33, 35, 37, 38, 41, 46, 48 to 54, 56 to 59, 61, 63 to 66. 2. Statutory period is over. None appears for the aforementioned respondents. The respondents are set exparte. 3. Respondents 1, 2 and 68 have filed their reply/objections. Rest of the respondents have opted not to file any reply/objections and seem contended with reply/objections filed by the respondents 1, 2 and 68. Right to file objections stands closed in terms of order dated 7.5.2010. 4. The petition at the request of the learned counsel for the parties is taken up for final disposal at the very threshold. 5. The petitioners pursuant to their selection on the basis of Competitive Examination 2002 and recommendation of J&K Public Service Commission, subsequent thereto, were vide government order no. 971-GAD of 2004 dated 23rd July 2004 allotted CD&NES (Gazetted) Service and temporarily appointed as Block Development Officers (for short BDOs) in the grade of Rs.7500-12000. The petitioners completed their probation, passed examination prescribed under government order no. 792-GAD of 1999 dated 14th July 1999 and SRO 139 of 2000 dated 12.05.2000, are holding the posts of Block Development Officers on substantive basis and serving as such in different blocks of the State. On the date the petitioners were appointed as Block Development Officers, the J&K Rural Development (Gazetted) Service Recruitment Rules, 2003, notified vide SRO 285 of September 1, 2003 (for short Recruitment Rules of 2003) were in place, and the service of the petitioners is thus governed by the said Rules. The petitioners’ grievance is that respondent no. 1 in gross violation of Rule 3(2) of the Rules of 2003 vide government order no. 144-RD of 2009 dated 17 June 2009 constituted "initial service" including such of the officers working as Incharge Block Development Officers on the date Recruitment Rules of 2003 came into force, who were not in terms of Rule 3(2) of the Rules of 2003 eligible to be included in the initial constitution of the service. The initial constitution of the service is also alleged to have been made in excess of the promotional quota provided under Rules and without consultation with J&K Public Service Commission. The petitioners are also aggrieved of Government order no. The initial constitution of the service is also alleged to have been made in excess of the promotional quota provided under Rules and without consultation with J&K Public Service Commission. The petitioners are also aggrieved of Government order no. 282-RD of 2008 dated 10/10/2008, whereby respondents 3 and 47 have been favoured with further promotion and put Incharge District Panchayat Officers and Government order no. 166-RD of 2007 dated 10/05/2007 whereby respondent no. 68 working as Block Investigator in department of Industries has been handpicked and appointed as BDO. The petitioners on the strength of the averments made in the petition seek following reliefs: (i) Writ order or direction in the nature of writ of certiorari quashing government order no. 144-RD of 2009 dated 17th June 2009 (annexure-G) to the extent it confirms the respondents 3 to 68 as Block Development Officers w.e.f. 1st. Sept. 2003 in the name of framing the initial constitution of service in terms of Rule 3(2) of the J&K Rural Development (Gazetted) Service Recruitment Rules, 2003. (ii) Writ, order or direction in the nature of writ of certiorari quashing government order no. 282-RD of 2008 dated 10 Oct. 2008, whereby respondents 3 and 47 namely Sita Ram Sharma and Muhammad Yousuf Malik have been put in charge District Panchayat Officers despite the fact that they were not even holding the posts of Block Development Officers in substantive capacity. (iii) Writ, order or direction in the nature of writ of certiorari quashing the government order no. 55-RD of 2002 dated 14 Feb. 2002 read with government order 166-RD of 2007 dated 10 May 2007 whereby respondent no. 68 Mohammad Rafiq Wani - has been illegally appointed by transfer from the department of Industries as Editor Dehat Sudhar in the department of Rural Development, thus rendering him senior to all the petitioners in class V i.e. Block Development Officers and equivalent officers. (iv) Writ, order or direction in the nature of writ of mandamus commanding the respondents I and 2 to delete the names of respondents 3 to 68 from the initial constitution of service as Block Development Officers and equivalent with a further direction to the respondent no. 1 to show the petitioners herein as senior to respondents 3 to 68 by promulgating the updated seniority list of Block Development Officers. 1 to show the petitioners herein as senior to respondents 3 to 68 by promulgating the updated seniority list of Block Development Officers. (v) Writ, order or direction in the nature of writ of mandamus/prohibition restraining the respondent no. 1 from giving any further promotions to the respondents 3 to 68 or consider them for selection case or induction into KAS on the basis of government order no. 144-RD of 2009 dated 17 June 2009. (vi) Any other writ, order or direction which this hon’ble court may deem fit and proper in the facts and circumstances of the case, may also be grafted in favour of the petitioners and against the respondents along with costs. 6. Respondents 1 and 2, in their reply to the writ petition, question the petitioners’ right to maintain the writ petition, pleading that the petitioners and respondents 3 to 68 belong to- different streams viz. direct recruitment quota and promotional quota and that petitioners thus have no right to challenge the regularization of the private respondents. It is insisted that government order no. 144-RD of 2009 dated 17/06/2009 is in tune with Rule 3(2) of Recruitment Rules of 2003 (SRO 285) and thus not open to any challenge. It is pleaded that under Recruitment Rules of 2003, 50 per cent of the vacancies of BDOs are to be filled up by direct recruitment and rest of the vacancies i.e. 50 % are to go to promotees from different feeding service and that the order impugned i.e. 144-RD of 2009 dated 17/06/2009 is restricted to quota reserved for the promotees. It is averred that some of the promoted BDOs holding the post for more them ten years, are eligible to be considered for next promotion under Rules. The "initial constitution of the service", according to respondents 1 and 2, has been made in consultation with the Law Department and General Administration Department and is in conformity with the Rules. Respondents 3 and 47, according to the official respondents, were placed as Incharge BDOs in year 1995 and have been regularized against the promotional quota. The petitioners, it is pleaded, cannot compare themselves with the respondents 3 and 47. It is admitted that respondent no. 68 was temporarily transferred to the Rural Development Department as Editor Dehat Sudhar in his own pay and grade vide Government Order no. The petitioners, it is pleaded, cannot compare themselves with the respondents 3 and 47. It is admitted that respondent no. 68 was temporarily transferred to the Rural Development Department as Editor Dehat Sudhar in his own pay and grade vide Government Order no. 238-GAD of 1997 dated 19/02/1997, his term extended by one year vide government order no. 889-GAD of 1999 dated 16 July 1999 and by a further period of six months vide Government Order no. 33-RD of 2000 dated 09/10/2000. Respondent no. 68, according to the answering respondents was thereafter vide government order no. 55-RD of 2002 dated 14/02/2002 permanently absorbed in Rural Development Department as Editor Dehat Sudhar in the pay scale of Rs 7500-12000 in consultation with and with the approval of Public Service Commission, conveyed vide no. PSC/DPC/Agri/RD/18/2001 dated 01.08.2001 and the Cabinet approval conveyed on 1st. February, 2002. The permanent absorption of the officer, it is pleaded, was vide government order no. 166-RD of 2007 dated 10.05.2007 given retrospective effect from 05.03.1997 in consultation with the Public Service Commission. Respondent no. 68 is said to have been a member of schedule tribe category, to have worked as Panchayat Inspector Officer prior to coming into force of Recruitment Rules of 2003 and adjusted as Headquarter Assistant. Non-inclusion of the petitioners in the seniority list of 2005 is justified on the ground that it was felt necessary to notify "initial constitution of the service" as required in terms of Rule 3(2) of the Recruitment Rules of 2003 and fix the seniority of the petitioners thereafter. The officers who figure in the seniority list of 2005 according to respondents 1 and 2 are senior to petitioners and that the petitioners are to be considered for promotion after the officers included in the seniority list and also after petitioners’ seniority is fixed in accordance with the rules. 7. Respondent no. 68 in his reply has almost verbatim reproduced all the averments made in the reply/objections filed by respondent 1 and 2. Respondent no. 68 claims to have applied for the post of Editor Dehat Sudhar through proper channel vide application dated 13th January 1997, while the respondent was working as Block Investigator in Industries and Commerce Department. 7. Respondent no. 68 in his reply has almost verbatim reproduced all the averments made in the reply/objections filed by respondent 1 and 2. Respondent no. 68 claims to have applied for the post of Editor Dehat Sudhar through proper channel vide application dated 13th January 1997, while the respondent was working as Block Investigator in Industries and Commerce Department. It is averred that though the respondent was initially transferred to the post, the respondent no.1 was finally absorbed as Editor Dehat Sudhar in Rural Development Department in consultation with Public Service Commission vide government order no. 166-RD of 2007 dated 10/05/2007 with effect from 05/03/1997. The respondent claims his transfer and subsequent absorption in Rural Development Department (gazette) Services to be in conformity with Rules and thus not open to challenge. 8. Heard and considered. 9. The J&K Community Development (Gazetted) Service Recruitment Rules 1977 notified vide SRO 515 on September 2, 1977 held the field prior to the J&K Rural Development (Gazetted) Service Recruitment Rules 2003 and governed recruitment, seniority, discipline, conduct, etc. of the members of J&K Community Development (Gazetted) Service. Schedule to the Recruitment Rules of 1977 prescribed qualification and method of recruitment for the post of BDO as under : SCHEDULE Class Category Grade Designation of the post Qualification Qualification for direct recruitment Method 1 2 3 4 5 6 7 I. 540-950 Dy. Director Panchayat By promotion from District Panchayat Officers with at least 3 years service as such II. 520-900 District Panchayat Officer By promotion from (nontechnical) BDO with at least three years service as such III. 475-850 Block Dev- Officer Bachelors degree from recognized university (a) 75% by selection of such officers as are willing to be considered from the following- i) Agriculture Extension officers In Agriculture/ Horticulture Department with at least five years experience in extension work 30 per cent. ii) Assistant Registrar of Cooperative Department in the selection grade of 460-750 20%. iii) Headquarter Assistant of the CD Deptt. In the grade of- i. Rs. 450-700 ii. Rs. 340-700 (10%) iii. Graduate Panchayat inspectors in the selection grade of 340-700 - 10%. iv. Panchayat Supervisors in the grade of 430-700 - 5%. b) 25% by direct recruitment. 10. ii) Assistant Registrar of Cooperative Department in the selection grade of 460-750 20%. iii) Headquarter Assistant of the CD Deptt. In the grade of- i. Rs. 450-700 ii. Rs. 340-700 (10%) iii. Graduate Panchayat inspectors in the selection grade of 340-700 - 10%. iv. Panchayat Supervisors in the grade of 430-700 - 5%. b) 25% by direct recruitment. 10. The Recruitment Rules of 1977 were amended vide J&K Gazetted Service Recruitment (Amendment) Rules 1994 notified vide SRO 210 dated October 5, 1994 and promotional quota slashed down from 75 per cent to 50 per cent. It follows that w.e.f. October 5, 1994 onwards the available vacancies of BDOs were to be filled up 50 per cent by promotion and 50 per cent by direct recruitment through competitive examination. The J&K Rural Development (Gazetted) Service Recruitment Rules 2003 that replaced the Recruitment Rules of 1977 as amended by J&K Gazetted Service Recruitment (Amendment) Rules 1994, maintained the qualification as well as method of recruitment as regards promotional and recruitment quota. However, the Recruitment Rules of 2003 (notified vide SRO 285) restricted the feeding quota for promotion to Panchayat Supervisors/Panchayat Inspectors grade-I/CEO/Lady Project Officer to 40 per cent and Headquarters Assistant to 10 per cent. The relevant part of schedule 2 of SRO 285 may be for ready reference reproduced as under:- B District Panchayat Officer (Pub) 7500 -12000 V A Block Development Officer 7500 -12000 Bachelors Degree from any recognized university B Block Development Officer (HQ) 7500 -12000 -do- C Editor Dehat Sudhar 7500 -12000 -do- D Field Officer, Rural Sanitation 7500 -12000 -do- Area Development Officer, Machil/Keran 7500 -12000 -do- Sd/- Special Secretary to Government Rural Development Department 11. Schedule 1 to SRO 285 dated 01.09.2003 gives sanctioned strength of BDO and other posts in the same grade as 168. Rule 3, Recruitment Rules of 2003, provides for constitution of J&K Rural Development Department (Gazetted) Service with effect from 1st September 2003, i.e. the date of commencement of Rules. Rule 3(2), that assumes significance in the context of the present controversy, needs to be noticed. Rule 3, Recruitment Rules of 2003, provides for constitution of J&K Rural Development Department (Gazetted) Service with effect from 1st September 2003, i.e. the date of commencement of Rules. Rule 3(2), that assumes significance in the context of the present controversy, needs to be noticed. It reads: "The government may at the commencement of these rules appoint to the service any person who at the commencement of these is holding any post in its sanctioned scale of pay included in the cadre of the service; provided that for the purpose of initial constitution of service, the person holding substantively any post included in the cadre of the service in its sanctioned scale of pay shall be deemed to have been appointed to the service under these rules." In terms of Rule 3 (2) of the Recruitment Rules of 2003, the "initial service" was to comprise of and drawn from the following two sources:- (I) Officers holding substantively any post included in the cadre of the Service in its sanctioned scale of pay i.e. "deemed members" of the Service. (II) Officers appointed to service, who at the commencement of the Recruitment Rules of 2003 were holding any post (not substantively) in its sanctioned scale of pay i.e. "appointed members" of service on the date w.e.f. commencement of the rules. Whereas, the "deemed members" of Service contemplated by Rule 3(2) of Recruitment Rules were holding their pests in the cadre of the service in its sanctioned scale of pay, substantively and were not thus required to be appointed to the service; in respect of other officers not holding substantively any post included in the cadre of service in its sanctioned scale of pay but only holding such post in the sanctioned scale of pay, the Government was in terms of Rule 3 (2) required to appoint such officers to the Service. 12. The respondent No. 1 in exercise of powers under Rule 3(2) of Recruitment Rules of 2003 vide Government order No. 144-RD of 2009 dated 17th June 2009 ordered "initial constitution" of Rural Development (Gazetted Service), impugned in the present writ petition to the extent it relates to respondents 3 to 68. The officers shown in Annexure-A to the impugned Government Order were declared as "deemed members" of the Service. The officers shown in Annexure-A to the impugned Government Order were declared as "deemed members" of the Service. All these officers substantively held the posts of BDOs and were thus included in the "initial constitution" of Service on the date of commencement of Recruitment Rules of 2003. The officers shown in Annexure-B to the aforesaid Government order held the posts in sanctioned scale of pay of the Service on the date of commencement of Recruitment Rules of 2003, not substantively but on Incharge/stopgap/adhoc basis. The respondent no. 1 thus vide Government order No. 144-RD of 2009 dated 17th June 2009, in effect appointed/confirmed officers shown in Annexure B to the said Government order, to the Rural Development (Gazetted) Service. The petitioners have no grievance in respect of Government order No. 144-RD of 2009 dated 17th June 2009 as regards officers shown in Annexure A to the Government order i.e. "deemed members" of the Service except to the extent it pertains to respondent No. 68 who figures at the tail end at S. No. 75 in Annexure A to the Government order. 13. The petitioners question inclusion of respondent no. 68 in Annexure A on the ground that his appointment to the service was in violation of rules. The petitioners, however, are aggrieved of appointment of the officers, who did not substantively hold any post in sanctioned scale of pay of the Service, on the date of commencement of the Recruitment Rules of 2003 and nonetheless were made part of "initial constitution" of the service. 14. The grounds on which the petitioners’ edifice their challenge to appointment/confirmation of officers shown in Annexure B to the Government order may be summarized and serialized hereunder:- (I) That the respondent no. 1 while appointing/ confirming the officers shown in Annexure B to the impugned Government order to the Service, has broken the quota rule and made the appointment from promotees over and above the quota they were entitled to under Recruitment Rules of 2003. (II) That most of officers included in Annexure B to the impugned Government order, did not fulfill the eligibility criteria prescribed under Recruitment Rules of 1977 and the Recruitment Rules of 2003 or the source from which they were drawn was not identified as a source for recruitment to the service by promotion under the aforesaid rules. (III) That the respondent no. (III) That the respondent no. 1 did not consult Public Service Commission as required under section 133 of J&K Constitution prior to their appointment to the service. 15. Now a closer look at the grounds ad seriatim against the backdrop of the stand taken by the parties as reflected in their pleadings and the material placed on the file. 16. The sanctioned strength of J&K Rural Development (Gazetted service) as per schedule A to the Recruitment Rules of 2003 (SRO 285 of 01.09.2003) is 168 (140 posts of BDOs/equivalent and 20% deputation). As per the Recruitment Rules of 2003 Class V posts or BDOs/ equivalent posts, are to be filled up 50% by direct recruitment and 50% by promotion from the J&K Rural Development (Non Gazetted) Service. It follows that out of 168 class V (BDO-equivalent) posts 84 are to be filled up by direct recruitment and 84 by promotion from identified sources. Schedule A to the Government order No. 144-RD of 2009 dated 17th June 2009 comprises of 75 officers and out of the said number 34 officers are direct recruits and 41 officers are promotes. There is thus a shortfall of 7 officers. The respondent No. 1, at the time of constitution of "initial service" as on the date of commencement of Recruitment Rules of 2003 was to appoint 43 officers from promotion quota and 50 officers from direct recruitment quota provided of course the promotees, otherwise, fulfilled the eligibility criteria laid down under the Recruitment Rules of 2003 and at the time of their initial adhoc/stop gap appointment fulfilled the eligibility criteria laid down in Recruitment Rules of 1977. The respondent no. 1 instead vide Government order impugned in the petition has appointed 80 officers from the promotion quota to the service. The respondent no. 1 obviously has exceeded the quota for promotees fixed under the Recruitment Rules of 2003. The appointment/confirmation of respondents 3 to 67 to the Service vide Government Order No. 144-RD of 2009 dated 17th June 2009 thus is in clear violation of the Recruitment Rules of 2003. It is nobody’s case that the respondents 3 to 67 were included in the "initial constitution" of the Service because of any administrative exigency. 17. It is well settled law that there can be no relaxation of basic and fundamental rules of recruitment. The respondent no. It is nobody’s case that the respondents 3 to 67 were included in the "initial constitution" of the Service because of any administrative exigency. 17. It is well settled law that there can be no relaxation of basic and fundamental rules of recruitment. The respondent no. 1 was under a legal obligation to follow the "quota rule" and restrict the appointment to the service from promotion stream, to the quota prescribed under Recruitment Rules of 2003, of course having due regard to the eligibility criteria and other requirements laid down under the rules. A reference in this regard may be made to law laid down in Suraj Parkash Gupta and ors. v. State of J&K and ors (2000) (7) SCC 561. In the said case, the Supreme Court held the wholesale regularization of the promotees by way of relaxation of the Recruitment Rules as invalid inter alia on the ground that the regularization was done "without following the quota rule". Though the respondent no. 1 is competent to make adhoc/stop gap arrangements/ appointments by promotion, yet such adhoc appointments by promotion are always subject to the quota rule and those appointed by promotion cannot hold the posts against quota and have to step aside when the direct recruitment is made. 18. The next ground of attack, as already pointed out relates to eligibility of respondents 3 to 67 to even hold any post in the cadre of Service because of lack of eligibility criteria, as also the officers not having been drawn from the source identified as the feeding source for appointment by promotion. The Recruitment Rules of 1977 identified amongst others Agriculture Extension Officers in the Agriculture/ Horticulture Departments with at least five years of experience in Extension work as one of the sources for appointment by promotion to the Service. The quota prescribed for the source was restricted to 30 % out of overall 75 % (later slashed down to 50% in 1994) initially set apart for promotion quota. The petitioners case is that all the Agriculture officers drawn from the source were not Agriculture Extension Officers (AEOs) on the date of their transfer to the Rural Development Department and posting as Incharge BDOs and thus the respondent no. 1 under Recruitment Rules of 1977 had no authority to post such officers as Incharge BDOs and much less any competent to appoint them to the Service. 1 under Recruitment Rules of 1977 had no authority to post such officers as Incharge BDOs and much less any competent to appoint them to the Service. There is substance in the averment. A bare perusal of Annexure B to the Government order No. 144-RD of 2009 dated 17th June 2009 reveals that none of the officers drawn from Agriculture/Horticulture Department on the date of their placement as Incharge BDOs figuring from 60 to 76, in Annexure B to the impugned Government Order, was Agriculture Extension Officers with requisite experience on the date they were transferred/inducted into Rural Development Department and placed as Incharge BDOs. Needless to mention that on the date they were transferred and posted shown in Vth Column of Schedule B to the impugned Government order Recruitment Rules of 1977 occupied the field and only an Agriculture Extension Officer with five years of experience could be in terms of Rules posted as BDO and later appointed to service at the time of "initial constitution" of service. 19. The Recruitment Rules of 1977 prescribed, across the board, Bachelors Degree as qualification for appointment by promotion to the post of BDO. The petitioners’ case is that a number of officers, from sources, other than Agriculture/Horticulture Department, identified for appointment by promotion in the Recruitment Rules of 1977, did not have the academic qualification prescribed under said Rules. The plea, again, finds support from Annexure B to the Government order. The academic qualification of the officers is recorded in column III of Annexure B. From perusal of Annexure B to the impugned Government Order, it transpires that the respondents 2, 4, 5, 6 7, 8, 9, 10, 13, 16, 17, 32, 41 did not possess the requisite academic qualification prescribed under Recruitment Rules of 1977 and thus in terms of Rules could not be placed as Incharge BDOs, least appointed to the service as has been done vide impugned Government Order. 20. Further, in terms of Recruitment Rules of 1077 only a Panchayat Inspector in the selection grade was to be appointed by promotion as BDO. The respondents 77 to 79 were only Panchayat Inspectors grade II on the date of their placement as Incharge BDO’s. The Recruitment Rules of 1977, similarly did not recognize "Mukhaya Sevika" as source for appointment by promotion as BDO. Nonetheless, respondent no. The respondents 77 to 79 were only Panchayat Inspectors grade II on the date of their placement as Incharge BDO’s. The Recruitment Rules of 1977, similarly did not recognize "Mukhaya Sevika" as source for appointment by promotion as BDO. Nonetheless, respondent no. 67 was not only posted as Incharge BDO on 3rd January, 1998 when Recruitment Rules of 1977 were in place, but also appointed to the Service vide impugned Government Order. It may be pointed out that, whereas Recruitment Rules of 2003, completely deleted Agriculture Extension Officers as a source for appointment by promotion to the post, of BDO/equivalent, it maintained Bachelor Degree as academic qualification for appointment by promotion as BDO/equivalent. Against the above backdrop the aforementioned respondents either did not fulfill the eligibility criteria prescribed under rules or did not belong to a source identified as such for appointment by promotion to the post of BDO/equivalent. 21. It is, however, disputed that the petitioners have a locus to question entitlement of respondents 3 to 67 to be considered for appointment/promotion against the promotion quota, on the ground of their being ineligible under the relevant rules. 22. It is argued by Shri M.K. Bhardwaj, learned counsel for the respondents that the petitioners as "direct recruits" cannot challenge appointment of the private respondents as Incharge BDOs and their subsequent appointment to the Service on the ground of their eligibility as the petitioners and private respondents belong to two different streams. There is substance in the argument advanced that the petitioners and the private respondents belong to two different streams and stand on different footing. However, the petitioners cannot call, in question the transfer/posting of the respondents as Incharge BDOs or their subsequent appointment to the service as long as their appointment does not violate the quota rule and any other rule governing the matter. 23. It has been held in Mukul Saikia and others v. State of Assam and ors (2008) AIR SCW 7971, relied upon by learned counsel for the private respondents, that the "direct recruits" cannot question regularization of adhoc promotees as long as the regularization is against the posts under promotion quota. In Mukul Saikia’s case, the State Government made adhoc appointment against the post of Child Development Project Officers (CDPOs). In Mukul Saikia’s case, the State Government made adhoc appointment against the post of Child Development Project Officers (CDPOs). The recruitment rules prescribed "ten years of continuous service" in the cadre of ACDPOs/Assistant Superintendent Officers and allied cadre as a requirement for promotion to the post of CDPO. The State Government in relaxation of rules regularized services of promotee CDPOs, though they had not completed ten years of continuous service in the cadre of ADPOs etc. The direct recruits who had a 60% quota fixed under the recruitment rules, questioned regularization of CDPOs against posts under promotion quota because of their ineligibility and insisted that posts should revert back to the direct recruits. The Apex Court rejecting the argument observed:- "The appellants and private respondents stand on completely different footing. The service of the private respondents having been regularized against the vacancies meant for promotees and the source of legal right of the appellants and the private respondents being from two distinct source, their relative rights cannot be compared with each other and therefore, there cannot be any violation of the fundamental rights under Article 14 of the Constitution of India as a consequence of the regularization of the service of the respondents". The Court proceeded to observe:- "The appellants fall in different categories and they have no enforceable right to challenge the regularization of private respondents who have been regularized against the vacancies meant for promotion quota". 24. In the above background, the petitioners in the present case could not question initial placement of respondents 3 to 67 as Incharge BDOs and their subsequent appointment to the Service vide Government order No. 144-RD of 2009 dated 17th June 2009 on the ground of lack of eligibility, had the quota rule not be broken. Since, it has been already held that the official respondent violated quota rule and the appointment of respondents 3 to 67 was made against quota, the law laid down in Mukul Saikia’s case is of no help to the respondents. 25. The plea that the officers, included in Annexure B to the impugned Government order, were appointed to the Service without consultation with J&K Public Service Commission, as mandated under section 133 J&K Constitution and the appointment due to the said reason was invalid sounds convincing. 25. The plea that the officers, included in Annexure B to the impugned Government order, were appointed to the Service without consultation with J&K Public Service Commission, as mandated under section 133 J&K Constitution and the appointment due to the said reason was invalid sounds convincing. Mere, reference of the matter to J&K Public Service Commission for convening DPC/PSC and its return without any agreement/approval with the remark that "initial constitution" of service first required to be examined, does not amount to compliance with section 133 of J&K Constitution. In Suraj Prakash Gupta’s case (supra), where the case set up was that promotees can avoid going through the Public Service Commission for recruitment to Gazetted cadre and that where the Government had ordered such promotions, relaxation permissible under Rule 5 of J&K Civil Service (CCA) Rules, 1956, was to be implied, it was held that there can be no relaxation of basic and fundamental rules of recruitment and that the power of relaxation under Rule 5 did not permit the relaxation of the rule requiring consultation with Public Service Commission. The Court, after reviewing case Jaw on the subject, summed up its conclusion as under:- "31. The result of the discussion, therefore, is that the wholesale regularization by order dated 2.1.1998 (for the Electrical Wing), by way of implied relaxation of the Recruitment Rule to the gazette category is invalid. It is also bad as it has been done without following the quota rule and without consulting the Service Commission. Further, the power under Rule 5 of the J&K (CCA) Rules 1956 to relax the Rules cannot, in our opinion, be treated as wide enough to include a power to relax rules of recruitment." 26. In the present case as already observed, the respondent No. 1, while including the officers mentioned in Annexure B in "initial constitution" of Service vide impugned Government Order, in effect appointed officers to J&K Rural Development (Gazetted service) in violation of Section 133 J&K Constitution. The impugned Government Order, in the circumstance, to the extent of Annexure B, has been made in violation of Constitutional mandate and thus liable to be set aside. 27. After dealing with the grounds set out in the petition, it would be appropriate to turn to the recitals of impugned Government Order. The impugned Government Order, in the circumstance, to the extent of Annexure B, has been made in violation of Constitutional mandate and thus liable to be set aside. 27. After dealing with the grounds set out in the petition, it would be appropriate to turn to the recitals of impugned Government Order. On going through the order, it becomes abundantly clear that the official respondents, while making the Order, were all along conscious of illegality that was being committed in appointing the officers mentioned as Annexure B to the Service. The official respondents appear to have been at pains to justify, in vain, their action which to their knowledge was against rules and in conflict with the Constitution. 28. The official respondents did not notice the opinion of Advocate General, relied upon to justify inclusion of the officers mentioned in Annexure B in the "initial constitution of the Service that "the officers drawn from the Agriculture Department working on deputation in Rural Department continued to retain their lien in their parent department" and the opinion that the Judgment in SWP No. 3167-3169/96 dated 18.05.2006 "in no way stops the Government in case of any of the BDOs from Agriculture Department eligible and entitled to be permanently absorbed in the Rural Development Department", (emphasis supplied). The impugned Government order also made bold admission of the fact that the officers, drawn from the Agriculture Department, did not fulfill the basic eligibility requirements. The impugned Government order reads:- "The officers, however, posted generally against the posts of BDOs were holding the posts of Junior Agriculture Assistance-equivalent and accordingly did not fulfill the basic requirement of eligibility for inclusion as members of the Rural Department (Gazetted service)." 29. The official respondents found solution to their self created problem in violation of Rules and the Constitutional mandate. This apart, if the Government is held entitled to make appointments to gazette service in the name of "initial constitution" of service from amongst officers not eligible to be appointed either because of non-fulfillment of eligibility criteria or violation of quota rules, the Government will find it easy to reframe rules now and then so as to accommodate officers not eligible to be appointed to the Gazetted service with impunity and squeeze space for "direct recruits". This course, it need no emphasis, is not permissible under law. This course, it need no emphasis, is not permissible under law. The appointment of officers mentioned in Annexure B to the impugned Government Order service, in addition to the grounds urged in the petition is also bad in law for the reasons detailed above. 30. The focus is now shifted to challenge to the appointment of respondent No.68 as BDO vide Government order No. 55-RD of 2002 dated 14th February, 2002 read with Government order No. 166-RD of 2007 dated 10th May, 2007 and his subsequent inclusion in Annexure A to the impugned Government Order as also Government Order No. 282-RD of 2008 dated 10th October 2008, whereby respondents 3 and 47 included in Annexure B to the impugned Government order, have been put Incharge District Panchayat Officers. 31. Perusal of record reveals that the respondent No.68, working as Block Investigator in the pay scale of Rs.2000-3400 in the Industries and Commerce Department, has been vide Government order No. 238-GAD of 1977 dated 19.02.1997 appointed by transfer as Editor Dehat Sudhar in his own pay and grade. It is pertinent to point out that the Recruitment Rules of 1977 did not make provision for post of Editor Dehat Sudhar and thus on the date the Government Order in question was passed no post of Editor Dehat Sudhar existed at least in the Rural Development Department (Gazetted Service). The Recruitment Rules of 1977, provided for the posts of Deputy Director Panchayats, District Panchayat Officer and Block Development Officers. The Recruitment Rules of 2003, however, made room for post of Editor Dehat Sudhar and made it a part of Class V posts along with Block Development Officer etc. in the grade of Rs. 7500-12000. The averment made in this regard in Para (8) of the petition has not been specifically controverted by the official respondents, though the respondent No.68 in his reply has insisted that such a post existed in Agriculture Department, without any supporting material. Perusal of record further reveals that the respondent No.68 was favoured with benefits and promotions in quick succession. The official respondents vide Government Order No. 1104-GAD of 1997 dated 8.7.1997 accorded sanction to grant of charge allowance in favour of respondent no. 68. It was followed by Government Order No. 809-GAD of 1999 dated 16th July, 1999, whereby the respondent no. 68 was appointed as Editor Dehat Sudhar in the pay scale of Rs. The official respondents vide Government Order No. 1104-GAD of 1997 dated 8.7.1997 accorded sanction to grant of charge allowance in favour of respondent no. 68. It was followed by Government Order No. 809-GAD of 1999 dated 16th July, 1999, whereby the respondent no. 68 was appointed as Editor Dehat Sudhar in the pay scale of Rs. 7500-12000 on ex-cadre basis for a period of one year or till the post was filled up, whichever was earlier. The respondent no. 6, however, continued to retain lien in his parent department. The official respondents vide Government Order No. 33-RD of 2000 accorded extension to the appointment of respondent no. 68 as Editor Dehat Sudhar in the pay scale of Rs. 7500-12000 for a farther period of six months. Thereafter, vide AGR/RD/A/146/97 dated 5.7.2001, the case of respondent No. 68 was forwarded to J&K Public Service Commission for agreement with/approval of, the proposal for adjustment/permanent absorption of respondent No. 68 as Editor Dehat Sudhar in the pay scale of Rs. 7500-12000 w.e.f. 19.2.1997. The J&K Public Service Commission accorded approval to the proposal vide Communication dated 1.2.2002, consequent whereupon the official respondents vide Government order No. 55-RD of 2002 dated 14.2.2002 accorded sanction to adjustment of respondent No. 68 on the post of Editor Dehat Sudhar and directed termination of Ms lien in the Industries and Commerce Department w.e.f 14.2.2002. This was followed by yet another Government Order bearing No. 166-RD of 2007 dated 10.5.2007, whereby in suppression of Government Order No. 55-RD of 2002 dated 14.2.2002 absorption of respondent no. 68 was sanctioned retrospectively w.e.f 5.3.1997 i.e. the date the respondent no. 68 as Block Investigator in the Industries and Commerce Department joined in his own pay and grade as Editor Dehat Sudhar. What emerges from the facts serialized hereinbefore is that the respondent No. 1 illegally appointed by transfer, respondent No. 68 against the post which was nonexistent under Recruitment Rules of 1977, that held the field. The official respondents, thereafter, left no stone unturned to catapult the respondent No. 68 to a Gazetted post, gave it retrospective effect from the date when the respondent No.68 did not hold a gazetted post, and felt contended only alter his inclusion as "deemed member" of the Service. The official respondents, thereafter, left no stone unturned to catapult the respondent No. 68 to a Gazetted post, gave it retrospective effect from the date when the respondent No.68 did not hold a gazetted post, and felt contended only alter his inclusion as "deemed member" of the Service. In case post of Editor Dehat Sudhar was available in Rural Development Department, least that was expected of the official respondent was to notify the vacancy, so that all those interested in the post had a fair opportunity to compete for the post. If respondent No.68 is to be believed, he came to know about the vacancy and applied for the same through proper channel. This made it obligatory for the official respondents to advertise the post and fill it up after initiating process for selection in accordance with rules. The official respondents, instead for the reasons best known to them, handpicked the respondent no. 68 in violation of Rules as also disregard to the Constitutional mandate of "equality before law" and appointed him against the post to which he was not entitled and helped him to jump the ladder and reach a gazetted post/service inaccessible to his similarly situated colleagues in his parent department and also to the determent of the members of the Rural Development Department Subordinate Service. The case of respondent No.68 is a typical instance, how government can circumvent law and violate Constitutional mandate with impunity by first appointing by transfer an employee to a non-existent or non-gazetted post and thereafter recast the rules, bring the post in the Gazetted cadre of the service, and include the official/employee in the gazetted service as a "deemed member" in the name of "initial constitution" of Service. The official respondents have acted brazenly in violation of rules by giving retrospective effect to appointment of respondent No.68 to the Gazetted Service with effect from 05.03.1997, when neither the post of Editor Dehat Sudhar was in the Gazetted Cadre, nor respondent No.68, held a Gazetted post. However, despite serious illegalities committed in appointment by transfer of respondent No.68 against post of Editor Dehat Sudhar and subsequent appointment to Gazetted Service and inclusion in "initial constitution" of service, challenge to appointment of respondent No.68 as BDO and inclusion as "deemed member" of service is destined to fail for the reason that the petitioners have no right/locus to maintain the petition against respondent No.68. The respondent No.68 has been appointed as BDO in the year 2002, when petitioners were yet to be recruited. The petitioners appeared on the scene in the year 2004 and can be by no stretch of imagination held to be effected parties. The petitioners were not similarly placed when the respondent No.68 was appointed as BDO and cannot complain of having been treated unequally. Challenge, if any, to appointment of respondent No.68 and subsequent inclusion as "deemed member" of service is to come from any one of the members of J&K Rural Development (Subordinate) Service, which is not the case herein. 32. The respondents 3 and 47 have been held ineligible for appointment to the Service and their inclusion in "initial constitution" of the service because of violation of quota Rule and also ineligibility in case of respondent No.47 held to be against law. The Government order No. 282-RD of 2008 dated 10th October, 2008 whereby respondents 3 and 47 have been put Incharge District Panchayat Officers - a post higher than Block Development Officer, cannot stand legal scrutiny and is liable to be quashed. 33. For the reasons discussed above, the wit petition is allowed. The impugned Government Order No. 144-RD of 2009 dated 17th June, 2009 is quashed to the extent of respondents 3 to 67 i.e. Annexure B to the impugned order. The final seniority list of Block Development Officers (BDOs), if any, issued on the basis of Government order No. 144-RD of 2009 dated 17th June, 2009, to the extent it pertains to the officers mentioned in Annexure B to the impugned Government Order, shall resultantly be inoperative and inconsequential. 34. The official respondents are directed to take steps warranted for "initial constitution" of service in terms of Rule 3 (2) of Recruitment Rules of 2003 in accordance with Rules and observation made above. 35. 34. The official respondents are directed to take steps warranted for "initial constitution" of service in terms of Rule 3 (2) of Recruitment Rules of 2003 in accordance with Rules and observation made above. 35. Needless to mention that there being no challenge to Annexure A, S.No. 1 to 74 to the impugned Government Order and challenge to appointment of respondent No, 68 as BDO vide Government Order No.55-RD of 2002 dated 14.02.2002, read with Government Order No. 166-RD of 2007 dated 10.05.2007, and inclusion as "deemed member" of service vide impugned Government Order having failed, the official respondents shall be free to act upon the Government Order to the extent it pertains to "deemed members" of service, mentioned in the Annexure A to the impugned Government Order. Interim direction dated 3.7.2009 to the extent of Annexure A to the impugned Government Order is accordingly vacated.