JUDGMENT : V.K. Sharma, J. 1. This writ petition being CWP (T) No. 10665 of 2008 arises out of Original Application (OA) No. 1357 of 2004 filed in the erstwhile H.P. State Administrative Tribunal, which on abolition of the said tribunal has been transferred to this Court and registered as such. The Original Application and the original applicants shall hereinafter be referred to as 'the petition' and 'the petitioners'. 2. In pursuance of notification dated 12.6.1990, Annexure A-2, respondent No.3, Dr. Jogi Ram Gaur (in short 'Dr. J.R. Gaur'), who at the relevant time was working as Senior Scientific Officer (Serology), Forensic Science Laboratory, Madhuban, Haryana (in short 'FSL, Haryana') had joined Forensic Science Laboratory, Himachal Pradesh (in short 'FSL, Himachal Pradesh') as Assistant Director on deputation basis for a period of three years with effect from April 2, 1990 in the pay scale of Rs. 3000-4500 per month on usual terms and conditions. 3. As per averments, petitioners No. 1 & 2, Bharat Raj Rawat and Arun Sharma had joined the FSL, Himachal Pradesh as Scientific Officers on 17.12.1990 and 16.8.1991, respectively. Respondent No.3, Dr. (Miss) Minakshi Mahajan, had joined FSL, Himachal Pradesh as Assistant Director in the year 2002, as stated at the bar. 4. At the time of filing of the petition in May, 2004, whereas, the petitioners were working in FSL, Himachal Pradesh as Assistant Directors, respondent No.3 was heading the said Laboratory as Director. Petitioner No.2 has since been promoted as Deputy Director. 5. Thus, whereas, respondent No.3 is a deputationist, the petitioners are direct recruits. 6. As already noticed, pursuant to notification dated 12.6.1990, Annexure A-2, respondent No.3 had joined FSL, Himachal Pradesh, as Assistant Director on deputation for a period of three years with effect from April 2, 1990. Thus, the deputation period was to expire on 1.4.1993, which was extended upto 31.1.1994 vide notification dated 16.10.1993, Annexure R-3/9. However, it appears that the deputation period was never extended thereafter. However, vide notification dated 30.7.1994, Annexure A-5, one post of Assistant Director in FSL, Himachal Pradesh (existing in the pay scale of Rs. 3000-4500) was upgraded to that of Deputy Director in the pay scale of Rs. 3700-5000 with immediate effect and consequently, respondent No.3 was ordered to be deemed to be on deputation on the upgraded post of Deputy Director with immediate effect. 3000-4500) was upgraded to that of Deputy Director in the pay scale of Rs. 3700-5000 with immediate effect and consequently, respondent No.3 was ordered to be deemed to be on deputation on the upgraded post of Deputy Director with immediate effect. Soon thereafter, vide notification dated 1.8.1994, Annexure A-3, respondent No.3 was permanently absorbed in FSL, Himachal Pradesh as Deputy Director in the pay scale of Rs. 3700-5000 with immediate effect, on the terms and conditions to be settled subsequently. 7. The petitioners have challenged notification dated 19.5.2003, Annexure A-1, whereby in supersession of earlier notification dated 1.8.1994, Annexure A-3, respondent No.3 was permanently absorbed in FSL, Himachal Pradesh on the post of Assistant Director on notional basis from the date when he was taken on deputation, i.e., w.e.f. 2.4.1990 mainly on the grounds that his initial appointment as Assistant Director on deputation vide notification dated 12.6.1990, Annexure A-2, is void ab initio as he did not fulfil the requisite educational qualifications and eligibility conditions prescribed vide Annexures-I & II to the letter dated 6.2.1989, Annexure A-4, which is in the nature of an advertisement notice-cum-administrative instructions on the subject, vide which the process for filling up Scientific posts in the newly created FSL, Himachal Pradesh was initiated, inasmuch as the incumbent was required to hold a Master's Degree in Chemistry/ Physics/ Botany/ Zoology/ Bio-Chemistry/ Forensic Science/Mathematics from a recognized University or equivalent, but respondent No.3, who was holding a degree of M.Sc. Anthropology, was not eligible/qualified for the post and his subsequent permanent absorption against the said post on notional basis from the date when he was taken on deputation, i.e. w.e.f. 2.4.1990 vide notification dated 19.5.2003, Annexure A1, is ultra vires of the administrative instructions and also violative of the Recruitment & Promotion Rules (in short 'R&P Rules') governing the post of Assistant Director in FSL, Himachal Pradesh inasmuch as neither there was consultation with the H.P. Public Service Commission at any stage, that is, at the time of issuance of notifications dated 30.7.1994, Annexure A-5, 1.8.1994, Annexure A-3 and 19.5.2003, Annexure A-1, nor the requisite approval was obtained from the Departments of Personnel and Finance. 8. 8. Against the above backdrop, the petitioners are seeking the following substantive reliefs vide para 7 (i) to (iii):- (i) to set aside and quash the Notification dated 19.5.2003, i.e. Annexure A-1; (ii) To issue declaration to the effect that respondent No.3 was ineligible to be appointed on deputation basis as Assistant Director in the respondent department as he was not having educational qualification and required experience as provided in the instructions dated 6.2.1989, i.e. Annexure A-4, and further in consequence thereof Annexures A-2, A-3 and A-5 may kindly be ordered to be set aside and quashed. (iii) That respondent No.3 may kindly be ordered to be reverted/sent back to his parent department i.e. State Forensic Science Laboratory, Haryana, Karnal, from where he had come on deputation in the respondent department on the post of Assistant Director. 9. The petition is contested by the respondents on preliminary objections regarding maintainability, locus-standi, cause of action, estoppel, limitation, delay & laches and nonjoinder & mis-joinder of necessary parties. 10. On merits, it is averred that respondent No.3, who was holding Master's degree in Physical Anthropology and had submitted thesis for Ph.D. to Punjab University, Chandigarh in the year 1999 and was already working in FSL, Haryana as Senior Scientific Officer (Serology), was eligible and duly qualified for appointment as Assistant Director on deputation and his subsequent absorption as such vide notification dated 19.5.2003, Annexure A-1, is also in accordance with rules and stands ratified by the Cabinet. It is further submitted that in the meantime during pendency of the petition, respondent No.3 has already been promoted as Director and since the Cabinet decision and promotion of respondent No.3 as Director have not been challenged by amending the petition, the same deserves dismissal. 11. Rejoinders refuting the above stand on behalf of the respondents and re-iterating the averments set up in the petition, have been filed. 12. I have heard the learned counsel/learned Additional Advocate General for the parties and perused the records. 13. It shall be pertinent to observe at the very outset that the process for filling up of Scientific posts including two posts of Assistant Directors on deputation for the newly created FSL, Himachal Pradesh was initiated by the Director General of Police, Himachal Pradesh, vide letter dated 6.2.1989, Annexure A-4. 13. It shall be pertinent to observe at the very outset that the process for filling up of Scientific posts including two posts of Assistant Directors on deputation for the newly created FSL, Himachal Pradesh was initiated by the Director General of Police, Himachal Pradesh, vide letter dated 6.2.1989, Annexure A-4. The requisite educational qualifications and eligibility conditions for the post of Assistant Director as per Annexures-I & II to the aforesaid letter dated 6.2.1989, Annexure A-4 were as under:- Educational Qualifications: 1. Two Assistant Directors, F.S.L. ESSENTIAL. Master's degree in Chemistry/Physics/ Botany/ Zoology/ Bio-Chemistry/ Forensic Science/ Mathematics from arecognized University or equivalent. 2. 10 years research, training and analytical experience in any one of the above subjects (evidence to be furnished). DESIRED: 1. Doctorate Degree. 2. Experience of working in Forensic Science Laboratory. 3. Knowledge of customs, manners and dialects of Himachal Pradesh. SPECIALISATION: One Asstt. Director is required for Chemistry/ Toxicology Division. His basic qualifications, training, experience should relate to the field of Toxicology/Chemistry. 2. One Asstt. Director will be required for Bio-Chemistry/Serology Division. His basic qualifications, training, experience should relate to the field of Bio-Chemistry/Serology. Eligibility Conditions: 1. Assistant Director. Officers under the Centre/ State Govts./ Universities/ recognized research institutions/ statutory/ semi-Government or autonomous Organisations: (a) (i) Holding analogous posts in the equivalent scale. or (ii) With 5 years service in the posts in the scale of Rs. 2200-4000 or equivalent and (b) possessing the qualifications & experience prescribed in annexure-I. (c) The deputationist shall not eligible for consideration for appointment by promotion. 14. According to the petitioners, respondent No.3, who was holding a Master's degree in Anthropology, was not qualified for the post of Assistant Director, in terms of the laid down qualifications and eligibility criteria. 15. Per contra, according to the respondents, respondent No.3, who was holding a Master's degree in Physical Anthropology and was already working in FSL, Haryana as Senior Scientific Officer (Serology) fulfilled the requisite educational qualification and eligibility criteria. 16. 15. Per contra, according to the respondents, respondent No.3, who was holding a Master's degree in Physical Anthropology and was already working in FSL, Haryana as Senior Scientific Officer (Serology) fulfilled the requisite educational qualification and eligibility criteria. 16. It shall be pertinent to observe at this stage that though according to the respondents, respondent No.3 was holding a Master's degree in Physical Anthropology, yet a perusal of the copies of degree, result-cum-detailed marks card and certificate of Master of Science brought on record by respondent No.3, which are at pages 479 to 481 of the Paper Book would go to show that in fact he holds a Master's degree in Anthropology and not Physical Anthropology. It appears that such pleadings have been set up on behalf of the respondents, particularly respondent No.3 with a view to bring his qualification within the purview of the R&P Rules for the post of Assistant Director (Biology & Serology), which were not in existence at the relevant time and instead came into existence much later vide notification dated 30.8.2007, Annexure R-3/12. Be it stated that the respondents have neither claimed that Master's degree in Anthropology is equivalent to the qualification provided for the post of Assistant Director or that the requisite qualification was ever relaxed in favour of respondent No.3. 17. It shall be appropriate at this stage to notice the legal position with regard to educational qualifications/eligibility conditions and relaxation there of. 18. In Mohd. Sohrab Khan Vs. Aligarh Muslim University and Others, (2009) 4 SCC 555 , the Hon'ble Supreme Court has held as under vide para 26 of the report at page 561: The advertisement which was issued for filling up the post of Lecturer in Chemistry could not have been filled up by a person belonging to the subject of Industrial Chemistry when the same having been specifically not mentioned in the advertisement that a Master's degree-holder in the said subject would also be suitable for being considered. There could have been intending candidates who would have applied for becoming candidate as against the said advertised post, had they known and were informed through advertisement that Industrial Chemistry is also one of the qualifications for filling up the said post. 19. The Hon'ble Apex Court has further held as under in Veer Kunwar Singh University Ad hoc Teachers Association and Others Vs. 19. The Hon'ble Apex Court has further held as under in Veer Kunwar Singh University Ad hoc Teachers Association and Others Vs. The Bihar State University (C.C.) Service Commission and Others, (2009) 17 SCC 184 , vide para 19 of the judgment:- It is now a well settled principle of law that any appointment made in violation of the constitutional scheme of equality as adumbrated under Article 14 of the Constitution of India as also in violation of the provisions of the Act and the subordinate legislations framed there under would be wholly illegal and without jurisdiction. It has been so held by a Constitution Bench of this Court in Secretary, State of Karnataka and Others Vs. Umadevi and Others, (2006) 4 SCC 1 , The ratio of the said decision has since been followed in a large number of cases e.g. R.S. Garg Vs. State of U.P. and Others, (2006) 6 SCC 430 , Surendra Prasad Tewari Vs. Uttar Pradesh Rajya Krishi Utpadan Mandi Parishad and Others, (2006) 7 SCC 684 , State of M.P. and Others Vs. Lalit Kumar Verma, (2007) 1 SCC 575, Indian Drugs and Pharmaceuticals Ltd. Vs. Workman, Indian Drugs and Pharmaceuticals Ltd., (2007) 1 SCC 408 , Municipal Corporation, Jabalpur Vs. Om Prakash Dubey, (2007) 1 SCC 373 , Accounts Officer (A and I) APSRTC and Others Vs. K.V. Ramana and Others, (2007) 2 SCC 324 , Punjab Water Supply and Sewerage Board, Hoshiarpur Vs. Ranjodh Singh and Others, (2007) 2 SCC 491 , State of Punjab v. Lakhwinder Singh, (2007) 2 SCC 502: (2007)1 SCC (L & S) 723, Yamuna Shankar Sharma Vs. State of Rajasthan and Others, (2007) 2 SCC 611 , and Post Master General, Kolkata and Others Vs. Tutu Das (Dutta), (2007) 5 SCC 317 . 20. It has been held as under by the Hon'ble Supreme Court in Nagendra Chandra and others versus State of Jharkhand and others, (2008) 1 SCC 798 vide para 9 of the judgment:- In view of the foregoing discussion, we have no option but to hold that if an appointment is made in infraction of the recruitment rules, the same would be violative of Articles 14 and 16 of the Constitution and being nullity would be liable to be cancelled. In the present case, as the vacancies were not advertised in the newspapers, the appointments made were not only in infraction of Rule 663(d) of the Bihar Police Manual but also violative of Articles 14 and 16 of the Constitution, which rendered the appointments of the appellants as illegal; as such the competent authority was quite justified in terminating their services and the High Court, by the impugned order, was quite justified in upholding the same. 21. In Union of India (UOI) and Another Vs. Narendra Singh, (2008) 2 SCC 750 , the Hon'ble Apex Court has held as under vide para 25 of the judgment:- We are unable to persuade ourselves as to how the Authorities did not carry out the order in letter and spirit as contended by the learned counsel for the respondent. We are also unable to agree with the Tribunal that the reasons recorded for rejection of the case of the respondent were not valid. On the contrary, in our judgment, the Deputy Accountant General was right in keeping in view relevant considerations, such as, the power should be exercised with respect to any class or category of persons, normally there should not be any relaxation in Recruitment Rules unless the eligible and qualified candidates are not available; relaxation should not be exercised to perpetuate mistake; a large number of Accountants who are eligible and qualified but they could not be appointed only because of non-availability of sufficient vacancies. 22. In Pramod Kumar Vs. U.P. Secondary Education Services Commission and Others, (2008) 7 SCC 153 , the Hon'ble Supreme Court has laid down as under vide para 18 of the report:- If the essential educational qualification for recruitment to a post is not satisfied, ordinarily the same cannot be condoned. Such an act cannot be ratified. An appointment which is contrary to the statute/statutory rules would be void in law. An illegality cannot be regularized, particularly, when the statute in no unmistakable term says so. Only an irregularity can be (See Secretary, State of Karnataka and Others Vs. Umadevi and Others, (2006) 4 SCC 1 National Fertilizers Ltd. and Others Vs. Somvir Singh, (2006) 5 SCC 493 , and Post Master General, Kolkata and Others Vs. Tutu Das (Dutta), (2007) 5 SCC 317 . 23. It has been held as under by the Hon'ble Supreme Court in Rajasthan Public Service Commission Vs. Umadevi and Others, (2006) 4 SCC 1 National Fertilizers Ltd. and Others Vs. Somvir Singh, (2006) 5 SCC 493 , and Post Master General, Kolkata and Others Vs. Tutu Das (Dutta), (2007) 5 SCC 317 . 23. It has been held as under by the Hon'ble Supreme Court in Rajasthan Public Service Commission Vs. Kaila Kumar Paliwal and Another, (2007) 10 SCC 260 , of the judgment:- 20. A person in order to be considered for promotion to a higher post must possess the essential qualification. If he does not do so, he cannot be considered therefore. Even the selection committee in absence of any express power conferred upon it cannot relax such essential qualification. See J.C. Yadav and others Vs. State of Haryana and others, (1990) 2 SCC 189 , and Dr. Bhanu Prasad Panda Vs. The Chancellor, Sambalpur University and Others, (2001) 8 SCC 532 . 21. Recruitment to a post must be made strictly in terms of the Rules operating in the field. Essential qualification must be possessed by a person as on the date of issuance of the notification or as specified in the rules and only in absence thereof, the qualification acquired till the last date of filing of the application would be the relevant date. See Ashok Kumar Sharma and Others Vs. Chander Shekhar and Another, (1997) 4 SCC 18 , U.P. Public Service Commission U.P., Allahabad and Another Vs. Alpana, (1994) 2 SCC 723 , and Harpal Kaur Chahah (Smt) v. Director, Punjab Instructions 24. In State of U.P. Vs. Neeraj Awasthi and Others, (2006) 1 SCC 667 , the Hon'ble Apex Court has laid down as under vide para 75 of the judgment:- The fact that all appointments have been made without following the procedure or services of some persons appointed have been regularised in past, in our opinion, cannot be said to be a normal mode which must receive the seal of the court. Past practice is not always the best practice. If illegality has been committed in the past, it is beyond comprehension as to how such illegality can be allowed to perpetrate. The State and the Board were bound to take steps in accordance with law. Even in this behalf Article 14 of the Constitution of India will have no application. Article 14 has a positive concept. No equality can be claimed in illegality is now well-settled. The State and the Board were bound to take steps in accordance with law. Even in this behalf Article 14 of the Constitution of India will have no application. Article 14 has a positive concept. No equality can be claimed in illegality is now well-settled. [See State of A.P. v. S.B.P.V. Chalapathi Rao and Others, (1995) 1 SCC 724, para 8, Jalandhar Improvement Trust Vs. Sampuran Singh, (1999) 3 SCC 494 , and State of Bihar and Others Vs. Kameshwar Prasad Singh and Another, (2000) 9 SCC 94 . 25. In Branch Manager, M.P. State Agro Industries Development Corpn. Ltd. and Another Vs. Shri S.C. Pandey, (2006) 2 SCC 716 , it has been held by the Hon'ble Supreme Court as under vide paras 17 & 21: 17. The question raised in this appeal is now covered by a decision of this Court in M.P. Housing Board & Anr. v. Manoj Srivastava [ Civil Appeal arising out of SLP (Civil) No. 27360/04 disposed of this date] wherein this Court clearly opined that: (1) when the conditions of service are governed by two statutes; one relating to selection and appointment and the other relating to the terms and conditions of service, an endeavour should be made to give effect to both of the statutes; (2) A daily wager does not hold a post as he is not appointed in terms of the provisions of the Act and Rules framed thereunder and in that view of the matter he does not derive any legal right; (3) Only because an employee had been working for more than 240 days that by itself would not confer any legal right upon him to be regularized in service; (4) If an appointment has been made contrary to the provisions of the statute the same would be void and the effect thereof would be that no legal right was derived by the employee by reason thereof. 21. In Dwarika Prasad Tiwari (supra), whereupon Mr. Mathur placed reliance, a Division Bench of this Court accepted the views of the Full Bench in Narayan Singh Rathor (supra). However, it was held that the Standing Order categorizes the nature of employment and it does not classify individual employees in different posts according to the hierarchy created in a department and thus the proviso to Rule 2 does not apply to promotions or regularizations in higher grade. 26. However, it was held that the Standing Order categorizes the nature of employment and it does not classify individual employees in different posts according to the hierarchy created in a department and thus the proviso to Rule 2 does not apply to promotions or regularizations in higher grade. 26. The following principle of law has been laid down by the Hon'ble Supreme Court in Secretary, A.P. Public Service Commission Vs. B. Swapna and Others, (2005) 4 SCC 154 , of the judgment:- The High Court has committed an error in holding that the amended rule was operative. As has been fairly conceded by learned counsel for Respondent 1 applicant it was the unamended rule which was applicable. Once a process of selection starts, the prescribed selection criteria cannot be changed. The logic behind the same is based on fair play. A person who did not apply because a certain criterion e.g. minimum percentage of marks can make a legitimate grievance, in case the same is lowered, that he could have applied because he possessed the said percentage. Rules regarding qualification for appointment if amended during continuance of the process of selection do not affect the same. That is because every statute or statutory rule is prospective unless it is expressly or by necessary implication made to have retrospective effect. Unless there are words in the statute or in the rules showing the intention to affect existing rights the rule must be held to be prospective. If the rule is expressed in a language which is fairly capable of either interpretation it ought to be considered as prospective only. (See P. Mahendran v. State of Karnataka and Gopal Krushna Rath v. M.A.A. Baig.) 27. The three Judges' Bench of the Hon'ble Apex Court has laid down as under in A. Umarani Vs. Registrar, Cooperative Societies and Others, (2004) 7 SCC 112 , vide paras 39 to 42:- 39. Regularisation, in our considered opinion, is not and cannot be the mode of recruitment by any "State" within the meaning of Article 12 of the Constitution of India or any body or authority governed by a statutory Act or the Rules framed thereunder. It is also now well settled that an appointment made in violation of the mandatory provisions of the statute and in particular, ignoring the minimum educational qualification and other essential qualification would be wholly illegal. It is also now well settled that an appointment made in violation of the mandatory provisions of the statute and in particular, ignoring the minimum educational qualification and other essential qualification would be wholly illegal. Such illegality cannot be cured by taking recourse to regularisation. (See State of H.P. v. Suresh Kumar Verma.) 40. It is equally well settled that those who come by back door should go through that door. (See State of U.P. v. U.P. State Law Officers Assn.) 41. Regularisation furthermore cannot give permanence to an employee whose services are ad hoc in nature. 42. The question came up for consideration before this Court as far back in 1967 in State of Mysore v. S.V. Narayanappa where in this Court observed: (SCR p. 132 C-D) Before we proceed to consider the construction placed by the High Court on the provisions of the said order we may mention that in the High Court both the parties appear to have proceeded on an assumption that regularisation meant permanence. Consequently it was never contended before the High Court that the effect of the application of the said order would mean only regularising the appointment and no more and that regularisation would not mean that the appointment would have to be considered to be permanent as an appointment to be permanent would still require confirmation. It seems that on account of this assumption on the part of both the parties the High Court equated regularisation with permanence'. 28. In P.K. Ramachandra Iyer and others versus P.K. Ramachandra Iyer and Others Vs. Union of India (UOI) and Others, (1984) 2 SCC 141 , the Hon'ble Supreme Court has held as under vide paras 30 & 31:- 30. The first question to which we must, therefore, address ourselves is whether there is any substance in the contention of Dr. Gupta that even applying the amplified essential qualification, respondent No. 6 Dr. S. L. Mehta was not qualified for being selected for the post? The finding recorded by the High Court in this connection is eloquent to establish that Dr. S. L. Mehta did not fulfil either the original or the amplified essential qualification, pertaining to experience. Says the High Court that the research experience of respondent No. 6 Dr. S. L. Mehta started from October, 1962 when he was preparing research thesis for M. Sc. S. L. Mehta did not fulfil either the original or the amplified essential qualification, pertaining to experience. Says the High Court that the research experience of respondent No. 6 Dr. S. L. Mehta started from October, 1962 when he was preparing research thesis for M. Sc. The selection took place in Feb., 1972 with the result that the research experience of Dr. Mehta fell short of 10 years. This finding was not only not controverted but is unassailable. And we do not subscribe to the view that the period spent in preparing thesis for M. Sc. - mark not Ph. D. counts towards required experience. It is well settled that experience to be of value and utility must be acquired after the educational qualification is obtained and not while acquiring the post-graduate qualification. In the case of Ph. D. Degree awarded on research the situation may be different. But preparing thesis after graduation for acquiring post-graduate degree would not count towards prescribed experience qualification. Respondent No. 6 qualified for M. Sc. in 1964 and Ph. D. towards the end of 1966 in soil science and Agricultural Chemistry under the guidance of Dr. N. B. Das and joined service at IARI in July, 1969. These facts are uncontroverted and, therefore, the High Court overlooked the fact that respondent No. 6 Dr. S. L. Mehta had research experience extending only over hardly a period of 5 years. Further the High Court failed to notice that respondent No. 6 appeared not to carry on research in the line of Nutrition or Protein Chemistry and therefore he did not fulfil the qualification at all and in our opinion, to even could not have been called for interview by the Selection Committee. Not only that, in para 10 of the writ petition in the High Court, it was specifically asserted that respondent No. 6 Dr. Mehta did not satisfy the original or amplified essential qualification pertaining to experience because the post was under the project on the protein quality of millets, sorghum, wheat and other cereals concerned with studies on the nutritional quality of foodgrains whereas Dr. Mehta has never done any work nor published any literature in the line, of nutrition nor was he ever basically trained in this line. In the counter-affidavits filed on behalf of respondents Nos. Mehta has never done any work nor published any literature in the line, of nutrition nor was he ever basically trained in this line. In the counter-affidavits filed on behalf of respondents Nos. 2 and 4 that is Director- General and Secretary to the Government of India, ICAR and Director-General of ICAR, this averment was neither questioned nor controverted nor denied. Further the High Court upheld the selection and appointment of respondent No. 6 Dr. Mehta holding that as the Selection Committee had power to relax the essential qualification, the appointment of Dr. Mehta was made after relaxing the essential. qualification. We find it difficult to appreciate that the High Court should uphold an appointment of a person, to suit whose requirement, the essential qualification was amplified by providing an irrelevant additional amplification and yet who failed to qualify for the same by resorting to the power of relaxation. And we are not satisfied, that. the second Selection Committee had the power to relax essential qualification pertaining to experience. In this connection, it is, advantageous to refer to the counter-affidavit of respondent No. 4, the Director-general of ICAR, wherein he stated that first essential qualification pertaining to educational attainment was relaxable. He is silent as to the second essential qualification pertaining to experience. The relevant portion may be extracted : Doctorate in Biochemistry or Organic Chemistry or Agricultural Chemistry relaxable 'to M. Sc. Degree or equivalent postgraduate qualifications in the case of candidates with exceptionally distinguished record of productive research. It is not suggested that' there was power of relaxation with regard to second essential qualification. However, neither respondent No. 6 nor respondents Nos. 2 and 4 ever asserted that but for power of relaxation claimed, respondent No. 6 could ever be' said to have satisfied the essential qualification pertaining to experience. In this connection, we may refer to a counter-affidavit on behalf of respondents Nos. 3 and 5 to 7 which included respondent No. 6 the party concerned. In the counter-affidavit, there is an sphinx like silence with regard to the averments made in para 10 that respondent No. 6 Dr. Mehta did not satisfy the essential qualification pertaining to experience. Sub silentio an admission can be spelt on behalf of respondent No. 6 that he did not have requisite essential qualification as to experience. Therefore, the conclusion is inescapable that respondent No. 6 Dr. Mehta did not satisfy the essential qualification pertaining to experience. Sub silentio an admission can be spelt on behalf of respondent No. 6 that he did not have requisite essential qualification as to experience. Therefore, the conclusion is inescapable that respondent No. 6 Dr. Mehta did not satisfy the essential qualification pertaining to experience even after the ICAR and its affiliates and respondent No. 4 amplified the essential qualifications. And we could not trace the source of power if any to relax essential qualification as to experience. Therefore, on the face of it the selection of respondent No. 6 for the post of Senior Biochemist is utterly unsustainable. More, so because there were others who fulfilled all essential qualification, and one is left to speculate the reasons which weighed with the Selection Committee to reject them and to select a person who did not fulfil the essential qualification for such a post as Senior Biochemist, claiming non-existent power to relax the qualification. 31. In this context one more submission may be disposed of. It was said that the Committee consisted of experts and they were highly qualified persons who would be able to evaluate and assess the relative merits of each of the candidates before it and the Court is least competent to do so and therefore it would be unwise to substitute experts' decision by Courts' decision. In this connection, reliance was placed on Dr. M.C. Gupta and Others Vs. Dr. Arun Kumar Gupta and Others, (1979) 2 SCC 339 , in which this Court held as under : When selection is made by the Commission aided and advised by experts having technical experience and high academic qualifications in the specialist field, probing teaching / research experience in technical subjects, the Courts should be slow to interfere with the opinion expressed by experts unless there are allegations of mala fides against them. It would normally be prudent and safe for the Courts to leave the decision of academic matters to experts who are more familiar with the problems they face than the Courts generally can be. Undoubtedly, even such a body if it were to contravene rules and regulations binding upon it, the Court in exercise of extraordinary jurisdiction to enforce rule of law, may interfere in a writ petition under Art. 226. Undoubtedly, even such a body if it were to contravene rules and regulations binding upon it, the Court in exercise of extraordinary jurisdiction to enforce rule of law, may interfere in a writ petition under Art. 226. It was urged that once it is conceded that as the power of selection and appointment vests in the ICAR, the Court should not usurp that power merely because it would have chosen a different person as better qualified (See State of Bihar and Others Vs. Dr. Asis Kumar Mukherjee and Others, (1975) 3 SCC 602, Undoubtedly, the Court must look with respect upon the performance of duties by experts in the respective fields as has been said in Dr. M. C. Gupta's case. However, the task of ushering a society based on rule of law is entrusted to this Court and it cannot abdicate its functions. Once it is most satisfactorily established that the Selection Committee did not have the power to relax' essential qualification pertaining to experience, the entire process of selection of the 6th respondent was in contravention of the established norms prescribed by advertisement and power of the Selection Committee and procedure of fair and just selection and. equality in the matter of public employment and to rectify resultant injustice and establish constitutional value this Court must interfere. Selection of respondent No. 6 is contrary to rules and orders and in violation of prescribed norms of qualification. He was ineligible for the post when selected. His selection and appointment would be required to be quashed and set aside. 29. In B.N. Nagarajan and others versus B.N. Nagarajan and Others Vs. State of Karnataka and Others, (1979) 4 SCC 507 , the Hon'ble Apex court has held as under vide the relevant portion of para 25 of the report:- In other words, the regularisation order, in colouring the appointments of promotees as Assistant Engineers with permanence would run counter to the rules framed under Art 309 of the Constitution of India. What could not be done under the three sets of Rules as they stood, would thus be achieved by an executive flat. And such a course is not permissible because an act done in the exercise of the executive power of the Government, as already stated, cannot override rules framed under Art. 309 of the Constitution. 30. What could not be done under the three sets of Rules as they stood, would thus be achieved by an executive flat. And such a course is not permissible because an act done in the exercise of the executive power of the Government, as already stated, cannot override rules framed under Art. 309 of the Constitution. 30. To the similar effect is the law laid down by the Hon'ble Supreme court in R.N. Nanjundappa Vs. T. Thimmiah and Another, (1972) 1 SCC 409 , wherein it has been held as under vide relevant portion of para 26:- If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution illegality cannot be regularised. Ratification or regularisation is possible of an act which is within the power and province of the authority but there has been some non-compliance with procedure or manner which does not go to the root of the appointment. Regularisation cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment indefiance of rules or it may have the effect of setting at naught the rules. 31. In Suraj Parkash Gupta and others versus Suraj Parkash Gupta and Others Vs. State of Jammu & Kashmir Others, (2000) 7 SCC 561 , it has been held as under vide para 28 of the judgment:- 28. The decisions of this Court have recently been requiring strict conformity with the recruitment rules for both direct recruits and promotees. The view is that there can be no relaxation of the basic or fundamental rules of recruitment. In Keshav Chandra Joshi and others etc. Vs. Union of India and others, (1992) 1 SCC 272 Supp, the Rule permitted relaxation of conditions of service and it was held by the three Judge Bench that the rule did not permit relaxation of recruitment rules. The words 'may consult the PSC' were, it was observed, to be read as 'shall consult PSC' and the rule was treated mandatory. In Syed Khalid Rizvi and Others and Ramesh Prasad Singh and Others Vs. Union of India (UOI) and Others, (1993) 3 SCC 575, decided by a three Judge Bench a similar strict principle was laid down. The words 'may consult the PSC' were, it was observed, to be read as 'shall consult PSC' and the rule was treated mandatory. In Syed Khalid Rizvi and Others and Ramesh Prasad Singh and Others Vs. Union of India (UOI) and Others, (1993) 3 SCC 575, decided by a three Judge Bench a similar strict principle was laid down. The relevant Rule - Rule 3 of the Residuary Rules (see p. 603) (para 33) in that case did permit relaxation of "rules". Even so, this Court refused to imply relaxation of recruitment rule and observed : The condition precedent, therefore, is that there should be appointment to the service in accordance with rules and by operation of the rule, undue hardship has been caused, ....It is already held that conditions of recruitment and conditions of service are distinct and the latter is preceded by an appointment according to Rules. The former cannot be relaxed'. 32. Though reliance has been placed on behalf of respondent No.3 on a judgment of the Hon'ble Apex Court in Dr. Rajbir Singh Dalal Vs. Chaudhari Devi Lal University, Sirsa and Another, (2008) 9 SCC 284 , wherein a candidate possessing Master's and Doctorate degrees in Political Science was held to be eligible and qualified for the post of Reader in Public Administration, yet the same is clearly distinguishable from the facts of the present case. In the case before the Hon'ble Supreme Court in Rajbir Singh Dalal (Dr.) versus Chaudhari Devi Lal University, Sirsa and another (supra), it was clarified by the University Grants Commission that a candidate with Master's degree in Public Administration is eligible for the post of Lecturer in Political Science and vice versa and further that the subjects of Political Science and Public Administration were inter related and inter changeable. However, in the present case, it is neither pleaded nor proved that Anthropology is also an inter related and inter changeable subject vis--vis Chemistry/Physics/Botany/Zoology/Bio-Chemistry/Forensic Science/ Mathematics. 33. However, in the present case, it is neither pleaded nor proved that Anthropology is also an inter related and inter changeable subject vis--vis Chemistry/Physics/Botany/Zoology/Bio-Chemistry/Forensic Science/ Mathematics. 33. In view of the above legal pronouncements and particularly the law laid down by the Hon'ble Supreme Court in Mohammad Shohrab versus Aligarh Muslim University and others (supra), wherein the candidate having Master's degree in Industrial Chemistry was held ineligible and not qualified for the post of Lecturer in Chemistry, it can be safely concluded that respondent No.3, who was holding a Master's degree in Anthropology, was ineligible and not qualified for the post of Assistant Director for which the requisite qualification was a Master's degree in Chemistry/ Physics/Botany/ Zoology/Bio-Chemistry/Forensic Science/ Mathematics from a recognized University or equivalent. 34. Now while adverting to the other aspect of the matter regarding validity of permanent absorption of respondent No.3 on the post of Assistant Director, FSL, Himachal Pradesh, from the date when he was taken on deputation, i.e., w.e.f. 2.4.1990 is concerned, admittedly, the same as also the earlier notifications dated 30.7.1994, Annexure A-5 and 1.8.1994, Annexure A-3 have been issued without prior consultation with the H.P. Public Service Commission, a constitutional authority, which was a mandatory pre-requisite for issuance of such notifications, as required under the H.P. Government, Department of Personnel letter dated 16.1.1979, Annexure A-9. Notification dated 20.9.1973 forming part of the HPPSC Hand Book, Annexure R-3/23 at page 330 of the Paper Book, whereby necessity to consult HP Public Service Commission has been dispensed with, does not apply to absorptions. Further more, before issuing these notifications, approval of the Department of Personnel was also not obtained. Still further despite there being a clear stipulation in the eligibility condition laid down vide Annexure-II to the letter dated 6.2.1989, Annexure A-4, that "the deputationist shall not (sic be) eligible for consideration for appointment by promotion, respondent No.3 was permanently absorbed against the upgraded promotional post of Deputy Director vide notification dated 1.8.1994, Annexure A-3, read with notification dated 30.7.1994, Annexure A-5, in blatant violation of the eligibility conditions as above provided for in Annexure-II to the letter dated 6.2.1989, Annexure A-4. The exception to this rule contained in Annexure A-III (A) to the letter dated 6.2.1989, Annexure A-4 to the effect that suitable willing officers can be considered for absorption after two years with the approval of the Government/HP Public Service Commission is not applicable in the facts and circumstances of the present case. Respondent No.3 cannot be said to have two years' service to his credit on the very day he had joined FSL, Himachal Pradesh on deputation, that is, 2.4.1990. 35. Strangely enough even when the extended period of probation of respondent No.3, which was to expire on 31.1.1994 is not shown to have been further extended and thus, he being a persona non grata, was allowed to continue as such up till 1.8.1994 when as per notification, Annexure A-3, he was absorbed on the upgraded promotional post of Deputy Director in pursuance of notification dated 30.7.1994, Annexure A-5, whereby he was deemed to be on deputation on the post of Deputy Director with immediate effect. 36. The matter did not rest even at that stage and lateron vide notification dated 19.5.2003, Annexure A-1, in supersession of earlier notification dated 1.8.1994, Annexure A3, respondent No.3 was permanently absorbed on the post of Assistant Director on notional basis from the date when he was taken on deputation, i.e. 2.4.1990, meaning thereby that the services of the petitioner as Assistant Director were regularized from day one, i.e., w.e.f. 2.4.1990 when admittedly he had joined FSL, Himachal Pradesh on deputation for a period of three years. In such circumstances, the petitioners, particularly petitioners No. 1 & 2, who were directly recruited in 1990, 1991 and 2002 and were directly affected were well within their rights to lay challenge against notification dated 19.5.2003, Annexure A-1 against which petitioners No. 1 & 2 had submitted representations, Annexures A-10 and A-12, which perhaps remained undecided. It being so, it cannot be said that either the petition has been filed beyond the period of limitation or suffers from delay and laches or the petitioners do not have any locus standi or cause of action to file the petition or are estopped from filing the same as is canvassed on behalf of the respondents by placing reliance upon Dr. Umakant Saran versus State of Bihar and Ors. (SC) 1973 (1) S.L.R. 204 (Head Note B), P.L. Lakhanpal Vs. Umakant Saran versus State of Bihar and Ors. (SC) 1973 (1) S.L.R. 204 (Head Note B), P.L. Lakhanpal Vs. A.N. Ray and Others, AIR 1975 Delhi 66, Full Bench (paras 17 and 20), Jit Singh and others vs. State of Punjab and others, (SC) 1979 (1) SLR 604 (Head Note-C), Dr. N.C. Singhal vs. Union of India and others, (SC) 1980 (2) SLR 118 (Head Note-C), S.S. Rathore Vs. State of Madhya Pradesh, (1989) 4 SCC 582 , (Head Note-B), S.P. Bakshi and others versus State of Haryana and others, (Pb. & Hry) 2002 (3) SLR 674 (para 7) and Union of India (UOI) and Others Vs. M.K. Sarkar, (2010) 2 SCC 59 , (Head Notes-A & C). 37. "Memorandum for consideration of the Council of Ministers", Annexure-PC, dated 14.3.2011, which sought 'to ratify the errors committed during permanent absorption of Dr. J.R. Gaur as Deputy Director in the State Forensic Science Laboratory, Junga in the year 1994' is to the following effect:- SECRET COPY No. 4. File No. Home C-(B)15-1/2008. "MEMORANDUM FOR CONSIDERATION OF THE COUNCIL OF MINISTERS" Minister-in-Charge : Chief Minister Secretary-in-Charge : Principal Secretary (Home) Subject:-To ratify the errors committed during permanent absorption of Dr. J.R. Gaur as Deputy Director in State Forensic Science Laboratory, Junga in the year 1994. On the aforesaid matter, facts of the case are as follows: 1. On 02.04.1990, in consultation with HP Public Service Commission the services of Dr. J.R. Gaur, Senior Scientific Officer, FSL, Madhuban were taken on deputation in State Forensic Science Laboratory as Assistant Director, Biology and Serology for a period of three years. In 1993, efforts were made to fill up the post of Assistant Director, Biology and Serology through direct recruitment but no eligible candidate was found. Therefore, the deputation of Dr. Gaur was extended from 03.04.1993 to 31.01.1994 with the prior permission of H.P. Public Service Commission. 2. On 14.05.1993, Director General of Police forwarded an application of Dr. J.R. Gaur for his repatriation to FSL, Madhuban Haryana. Meantime, Dr. B.R. Sharma who was re-employed as Director, SFSL after his retirement as Director, CFSL, Chandigarh, was relieved from his services as Director on 31.8.1993. Thereafter, a number of references were received from the office of DGP to upgrade the post of Assistant Director to Deputy Director and to absorb Dr. J.R. Gaur permanently as Deputy Director in SFSL, as Dr. B.R. Sharma who was re-employed as Director, SFSL after his retirement as Director, CFSL, Chandigarh, was relieved from his services as Director on 31.8.1993. Thereafter, a number of references were received from the office of DGP to upgrade the post of Assistant Director to Deputy Director and to absorb Dr. J.R. Gaur permanently as Deputy Director in SFSL, as Dr. Gaur was willing for the permanent absorption only as Deputy Director. 3. In view of special circumstances viz. the State Forensic Science Laboratory being a new organization and no senior or experienced officer being available to head the Laboratory and the assignment being technical, the Government approved permanent absorption of Dr. J.R. Gaur as Deputy Director in SFSL on 1-8-94 subject to the following stipulations: 1. that Dr. Gaur will get himself relieved permanently from Haryana Government from which he was on deputation. 2. that the State Government will get his order expedited from Haryana Government. 3. that this promotion to the rank of Deputy Director will be subject to approval from HPPSC. 4. Accordingly, the matter was taken up with Finance Department for up-gradation of the post of Assistant Director to Deputy Director and the Finance Department concurred with the proposal. Thereafter, a case was sent to HP Public Service Commission for permanent absorption of Dr. J.R. Gaur and adhoc promotion as Deputy Director. However the Commission approved the permanent absorption of Dr. Gaur only as Assistant Director and further advised that the Government may send a proposal for his regular promotion as Deputy Director after finalizing the R&P Rules. 5. However, the government did not concur with the advice of the Commission and after due consideration and approval of the Council of Ministers a Notification was issued on 30th July, 1994 vide which the post of Assistant Director was upgraded to Deputy Director and it was ordered that Dr. Gaur on deputation with this Government on the post of Assistant Director shall be deemed to be on deputation on the post of Deputy Director (copy of the Notification is attached as Annexure-A) with effect from the date of this notification. Thereafter another Notification was issued on 1st August, 1994 for permanent absorption of Dr. Gaur as Deputy Director in State Forensic Science Laboratory (copy of the Notification is attached as Annexure-B). 6. During the review of the case of absorption of Dr. Thereafter another Notification was issued on 1st August, 1994 for permanent absorption of Dr. Gaur as Deputy Director in State Forensic Science Laboratory (copy of the Notification is attached as Annexure-B). 6. During the review of the case of absorption of Dr. Gaur in SFSL on departmental file, it has come to notice that in the memorandum which was approved by the CMM through circulation (attached as Annexure-C), it was not mentioned that the HP Public Service Commission had not approved the permanent absorption of Dr. J.R. Gaur in SFSL as Deputy Director. This is a serious omission though it cannot be surmised as to what would have been the effect of this fact on the case under consideration and the final orders in this case. Further, the orders of promotion and absorption of Dr. J.R. Gaur as Deputy Director were also not communicated to the State Public Service Commission which was mandatory. As per requirement, when the advice of Public Service Commission is not accepted by the Government, the matter is reported by Public Service Commission in its Annual Report which is placed before the Vidhan Sabha by the Govt. with justification/cogent reasons for not adhering to the advice of the Public Service Commission. Also, when Dr. Gaur was absorbed as Deputy Director, he was having service of 4 years and 3 months as Assistant Director whereas in the proposed R&P Rules (which had not been finalized at that time) for the post of Deputy Director, minimum service of 5 years as Assistant Director was proposed for promotion to the post of Deputy Director. It may however be stated that the R&P Rules for the post of Deputy Director as these exist at present, only require three years service as Assistant Director. 7. The matter was referred to Department of Personnel on 30.11.2009 to advise as to how these errors can be rectified. The DOP has advised that this case needs to be rectified for which the matter is required to be placed before the Council of Ministers with full facts and justification failing which the benefits allowed to Dr. J.R. Gaur, in violation of relevant rules/instructions and advice of HP Public Service Commission, will have to be withdrawn. DOP has however neither mentioned the mechanism/road map to withdraw the benefits given to Dr. J.R. Gaur nor the stand which Govt. J.R. Gaur, in violation of relevant rules/instructions and advice of HP Public Service Commission, will have to be withdrawn. DOP has however neither mentioned the mechanism/road map to withdraw the benefits given to Dr. J.R. Gaur nor the stand which Govt. will be required to take in the court of law if required, if these benefits were withdrawn and the orders are challenged in Court. The DOP advice is reproduced below: Examined in the Department of Personnel. It is observed that the A/D (Home) has committed a number of irregularities at different points of time in the matter of appointment/permanent absorption and promotion of Dr. J.R. Gaur from the post of Assistant Director to the post of Deputy Director and then Director, SFSL. The A/D (Home) has not consulted Department of Personnel in the matter of ad-hoc promotion or retrospective absorption which was pre-requisite and has also not put forth full facts of the case including refusal of Himachal Pradesh Public Service Commission for the permanent absorption against the post of Deputy Director and ad-hoc promotion to the post of Deputy Director in the absence of R&P Rules. The patent errors committed by the A/D (Home) in this case need to be rectified for which the matter is required to be placed before the Council of Ministers with full facts and justification failing which the undue and wrong benefits allowed to Dr. J.R. Gaur, in violation of relevant rules/instructions and advice of the Himachal Pradesh Public Service Commission, will have to be withdrawn. Besides, the A/D may also consider action to fix the responsibility of officers/officials who are responsible for these patent errors especially for concealing the facts from the Council of Ministers. 8. The advice of the Law Department too has been taken which may kindly be perused at Annexure-D. 9. It is submitted that a CWP No. 10665 of 2008 has been filed in the High Court challenging the appointment of Dr. J.R. Gaur as Deputy Director in the Forensic Science Department and his subsequent absorption in the post, on various grounds, including on the ground that he did not meet the eligibility criteria to be absorbed as Deputy Director in the department. In the reply affidavit dated 17.8.2004 filed by the State Government before the Hon'ble Himachal Pradesh Administrative Tribunal/High Court, the State Govt. has already taken the stand that the absorption of Dr. In the reply affidavit dated 17.8.2004 filed by the State Government before the Hon'ble Himachal Pradesh Administrative Tribunal/High Court, the State Govt. has already taken the stand that the absorption of Dr. J.R. Gaur was well within the rights of the State Govt. and the same was done in public interest taking into account the qualification and experience of Dr. J.R. Gaur. 10. This CWP came up for hearing before the High Court on 22.9.2010 and on that date the following directions were passed:- From the documents placed on record it is apparent that Hon'ble Chief Minister of the State had taken a decision to the effect that petitioner's appointment is void ab initio. A direction was issued to take necessary steps to rectify the errors. What action has been taken by the Government on the same is not evident from the record. In this regard Principal Secretary (Home) to the Government of H.P. is directed to file his personal affidavit within a period of four weeks. 11. Accordingly, the Home Department has filed an affidavit on 11.10.2010 in the High Court, wherein the present position of the case was brought to the notice of the High Court. The operative part of the affidavit dated 11.10.2010 filed in the High Court is as follows:- That presently, the matter is in the process of examination at the level of Home Department (in light of the advice of the Law Department vide Annexure P-16) in compliance to the observations of the Hon'ble Chief Minister as recorded on file on 1.8.2010. The matter shall be resubmitted for orders of Hon'ble Chief Minister after detailed examination. 12. In view of the above position, it is brought to the notice of the Cabinet that when the proposal regarding up-gradation of the post of Assistant Director, Forensic Science Laboratory to that of Deputy Director and permanent absorption of Dr. J.R. Gaur on the post of Deputy Director was approved by the CMM through circulation on 20.07.1994, the fact that HP Public Service Commission has not approved the permanent absorption of Dr. J.R. Gaur in SFSL as Deputy Director was not brought to its notice. Also, the fact that Dr. J.R. Gaur on the post of Deputy Director was approved by the CMM through circulation on 20.07.1994, the fact that HP Public Service Commission has not approved the permanent absorption of Dr. J.R. Gaur in SFSL as Deputy Director was not brought to its notice. Also, the fact that Dr. Gaur was having service of 4 years and 3 months as Assistant Director in SFSL whereas in the proposed R&P Rules for the post of Deputy Director at that time the minimum service of 5 years as Assistant Director was proposed for promotion to the post of Deputy Director. To rectify these errors, it is proposed that at this stage when the matter is over 15 years old, the CMM may consider the matter and ratify the earlier decision taken on 20.07.1994 to absorb Dr. Gaur as Deputy Director in SFSL. These irregularities pertain to (i) non-consultation with Department of Personnel while ordering absorption of Dr. Gaur (the fact remains that the CMM approved the proposal even without this advice) (ii) Omission to mention the fact of H.P. Public Service Commission's refusal to concur with the proposal for Dr. Gaur's absorption at Deputy Director level in the Memorandum put up to CMM in 1994 and (iii) his deputation and subsequent absorption on 1.8.1994 in the post of Deputy Director even though no R&P Rules were finalized by that date. 13. The main justification for ex-post facto ratification by the CMM is the fact that the matter is now about 18 years old and any adverse order passed against the official at this stage is not likely to be viewed kindly by the Court which will certainly be approached in the event of any adverse orders passed. Further the decisions were taken in the matter by the competent Authority i.e. the Council of Ministers. Even though it has come on record that Department of Personnel consultation was not done and the fact of non acceptance of the proposal by the Public Service Commission was not brought to the notice of the Cabinet while taking a decision in the matter, it may not be fair to hazard a guess and to presume that the decision of CMM would have been otherwise if these facts were in the notice of CMM. The fact is that there was a serious shortage of forensic experts and efforts of State Government to fill up the post were not yielding any results, that Dr. Gaur who was on deputation from Haryana Government had already requested to be relieved of his duties and to return to his parent State/Cadre which would have certainly affected the nascent establishment of State Forensic Science Laboratory; and the Police Department had repeatedly recommended the absorption of Dr. Gaur in State Forensic Science Laboratory at that time. It is submitted that the Finance Department had also concurred to the up-gradation of the Assistant Director's post to that of Deputy Director in 1994. It is further submitted that the matter being quite old, it has become difficult to fix responsibility of concerned officials, most of whom have superannuated and are no more in service at present. It may also be added that the work of Dr. Gaur during his stint as Deputy Director and later as Director, State Forensic Science Laboratory has been found to be of high quality and the State Forensic Science Laboratory is now well established. 14. Thus the proposal is submitted for council of Ministers consideration. 15. The approved of the Hon'ble Chief Minister for placing the matter before Cabinet has already been obtained. POINTS FOR CONSIDERATION To ratify the previous decision of the CMM taken through circulation on 20.07.1994 regarding up-gradation of the post of Assistant Director, Forensic Science Laboratory to that of Deputy Director and the order dated 1.8.1994 of permanent absorption of the deputationist Dr. J.R. Gaur on the post of Deputy Director in State Forensic Science Laboratory. 38. However, since notification dated 1.8.1994, Annexure A-3 based on notification dated 30.7.1994, Annexure A-5, which was sought to be ratified vide the above Cabinet Memorandum, Annexure-PC, dated 14.3.2011 stood already superseded with issuance of notification dated 19.5.2003, Annexure A-1, which is extracted below, the exercise carried out under the above Cabinet Memorandum, Annexure-PC, dated 14.3.2011 was an exercise in futility and is thus, absolutely innocuous and of no consequence and as such, would not amount to ratification or validation of the illegalities surrounding permanent absorption of respondent No.3 ordered by respondent No.1 vide notification dated 19.5.2003, Annexure A-1: Government of Himachal Pradesh "Home Department" No. Home (A) B (1)12/86-II. Dated Shimla-171002, (sic) 5-2003.2003. Dated Shimla-171002, (sic) 5-2003.2003. NOTIFICATION In supersession of this department's notification of even number dated 1st August, 1994, the Governor, Himachal Pradesh, is pleased to order the permanent absorption of Dr J.R. Gaur on the post of Assistant Director on notional basis in the State Forensic Science Lab., H.P. from the date when he was taken on deputation i.e. w.e.f. 2.4.1990. BY ORDER Addl. Chief Secretary (Home) to the Government of Himachal Pradesh. 39. As far as "Memorandum for consideration of the Council of Ministers" dated 2.5.2003, Annexure PB, wherein the point for consideration was "whether Dr. J.R. Gaur may be notionally absorbed on the post of Assistant Director in the State Forensic Science Lab. from retrospective date i.e. 2.4.1990 when he was taken on deputation" is concerned, suffice it to say that even as per opinion of the Law Department to the Government of Himachal Pradesh, which is at pages 195 to 197 of the Paper Book, it is specifically opined at page 196 that "even the permanent absorption of Dr. J.R. Gaur vide Notification dated 19.5.2003 w.e.f. 2.4.1990, the date when he was taken on deputation cannot be said to be legal when his initial deputation as Assistant Director was for a period of three years and particularly when the prescribed procedure for this purpose was not adopted". 40. In view of the above, Cabinet Memorandum, dated 14.3.2011, Annexure-PC is of no consequence as far as notification dated 19.5.2003, Annexure A-1 is concerned and would not at all amount to ratify the same by any stretch of imagination. Even otherwise, any Cabinet decision based on memorandum dated 14.3.2011, Annexure-PC has neither been brought on record nor shown to have been implemented by issuance of requisite order/notification in the name of the Governor, Himachal Pradesh, as required under Article 166 of the Constitution. Please see: State of Kerala Vs. Smt. A. Lakshmikutty and others, (1986) 4 SCC 632 and M.R.F. Ltd. Vs. Manohar Parrikar and Others, (2010) 11 SCC 374 . Thus, the petitioners were not required to lay a specific challenge against Cabinet memorandum dated 14.3.2011, Annexure-PC. 41. Please see: State of Kerala Vs. Smt. A. Lakshmikutty and others, (1986) 4 SCC 632 and M.R.F. Ltd. Vs. Manohar Parrikar and Others, (2010) 11 SCC 374 . Thus, the petitioners were not required to lay a specific challenge against Cabinet memorandum dated 14.3.2011, Annexure-PC. 41. The cumulative effect of the above discussion is that the impugned notifications dated 19.5.2003, Annexure A-1, 12.6.1990, Annexure A-2, 1.8.1994, Annexure A-3 and 30.7.1994, Annexure A-5 cannot be sustained and are accordingly quashed and as a result notifications dated 6.8.1998, Annexure R-3 and 21.3.2001, Annexure R-4, whereby respondent No.3 was promoted as Director, FSL, Himachal Pradesh on ad hoc/regular basis, respectively, can also not stand on the principle that when the foundation goes, the superstructure can also not stand. 42. The petition is allowed in the above terms, leaving the parties to bear their own costs.