JUDGMENT : Amitava Roy, J. The rhizome of the debate is traceable to the Assam Secondary Education (Provincialised) Service (Amendment) Rules, 1991 (also hereinafter for short referred to as the 1991 Rules) as well as the Assam Secondary Education (Provincialised) Service Rules, 2003 (also for short hereinafter referred to as the 2003 Rules), the constitutional validity whereof has been impeached seeking as well, the consequential annulment of the selection process undertaken in terms of the latter and the appointments based thereon. A writ of mandamus or any other appropriate writ and/or directions has also been sought for to fill up the post of Headmaster/Headmistress in the High Schools in the State of Assam in accordance with the Assam Secondary Education (Provincialized) Service Rules, 1982 (hereafter for short also referred to as the 1982 Rules). The connected writ appeals emerge from adjudications negating the impugnment of the selection process as per the 2003 Rules on grounds other than the perceived unconstitutionality thereof. We have heard Mr. D.K. Mishra, Sr. Advocate assisted by Ms. S. Jahan, Advocate for the petitioners/appellants and Mr. D. Saikia, learned Addl. Advocate General, Assam representing the official respondents. We have heard as well the learned counsel for the other writ petitioners and writ appellants as aforementioned. 2. The pleaded facts of WP(C) No. 1526/2012 would be adequate enough to sketch the factual background to deal with the assailment of the vires of the two Rules referred to hereinabove. As any affirmation of the impugnment would be of conclusive bearing on all the proceedings on board, dilation of the contextual facts, case wise is inessential. 3. The petitioners in WP(C) No. 1526/2012 are graduates from different recognized universities of the State and have joined various high schools here at as Astt. Teachers and have been serving in that capacity for a period of three decades and more as on date. As senior most teachers in their respective institutions, they had meanwhile been allowed to hold charge of the post of Headmaster/Headmistress of their schools and since then they have been discharging their duties as such to the best of their abilities. Teachers and have been serving in that capacity for a period of three decades and more as on date. As senior most teachers in their respective institutions, they had meanwhile been allowed to hold charge of the post of Headmaster/Headmistress of their schools and since then they have been discharging their duties as such to the best of their abilities. In the month of February, 2002 as required by the concerned departmental authorities, they appeared in the interview for regular appointment to the post of Headmaster/Headmistress of their respective schools in terms of the 1982 Rules and though they learnt that a list of eligible candidates in order of preference had been prepared, nothing transpired thereafter. While the matter rested at that, the 2003 Rules were framed for regulation of recruitment and conditions of service amongst others of Headmaster/Headmistress of the high schools. An advertisement dated 02.11.2010 issued by the Director, Secondary Education-cum-Member Secretary, State Selection Board, Assam followed soliciting candidature for the post of Principal/Vice Principal/Headmaster/Headmistress/Superintendent/Asstt. Headmaster etc. in the provincialised Higher Secondary & Multipurpose/High Madrasa Schools of the State. The advertisement stipulated amongst others for the post of Headmasters/Headmistresses, Superintendent of High Schools/High Madrasa Schools, a minimum qualification of graduate in Arts, Science or Commerce with B.T./B.Ed. and 10 years teaching experience as Graduate Teacher. It was clearly indicated that the process would be conducted as per the provisions of the 2003 Rules. 4. As the petitioners did not possess B.Ed./B.T. Degree, their candidature was not accepted by the departmental authorities. According to the petitioners, the Assam Secondary Education (Provincialised) Service Rules, 1982 could not have been amended or repealed by the 1991 Rules and the 2003 Rules framed under Article 309 of the Constitution of India and, as such, those are non-est and all consequential actions in terms thereof are void. 5. The Education (Secondary) Department of the State through its affidavit affirmed by its Secretary while admitting that the petitioners, as claimed by them had been allowed to hold charge of the office of the Headmaster/Headmistress in their respective schools on purely temporary basis, denied that the 1982 Rules had been framed in exercise of powers under the 1977 Act. 5. The Education (Secondary) Department of the State through its affidavit affirmed by its Secretary while admitting that the petitioners, as claimed by them had been allowed to hold charge of the office of the Headmaster/Headmistress in their respective schools on purely temporary basis, denied that the 1982 Rules had been framed in exercise of powers under the 1977 Act. According to the answering respondents, to rectify the unintended mistake, the preamble of the 1982 Rules was substituted to proclaim that the same had been framed in exercise of powers conferred under the proviso to Article 309 of the constitution of India vide notification No. EPG.833/89/85 dated 30.12.1991. It has been asserted further that Section 8 of the 1977 Act did not authorize framing of any rule governing the service conditions of the teachers provincialised under the enactment and thus the necessary insertion to that effect was incorporated by the Assam Secondary Education (Provincialised) Service (Amendment) Rules, 1991 to clarify that the 1982 Rules had been framed in exercise of powers under Article 309 of the Constitution of India and thereby retrospective effect to the amendments was also accorded. The answering respondents thus maintained that the 1982 Rules from its inception had been framed for all practical purposes under Article 309 of the Constitution of India and the field thereof at no point of time was occupied by any statutory rules. It has been stated as well that though a selection process was initiated in the year 2002 to fill up the post of Headmaster/Headmistress, Superintendent/Asstt. Headmaster and Asstt. Headmistress of provincialised Secondary Schools of the State, in view of the intervention of this Court due to initiation of writ proceedings, the process could not be finalized. The answering respondents pleaded as well that as the petitioners were ineligible in terms of the 2003 Rules, their candidature was not accepted. The dismissal of the challenge by this Court to the prescription of B.Ed./B.T. as a condition of eligibility in the 2003 Rules, amongst others, in Kanak Chandra Nath Vs. State of Assam and Others, has been referred to contend against the maintainability of the writ petition being barred by the principle of conclusive res judicata. The answering respondents have thus repudiated the present proceedings to be one by proxy litigants lacking in bona fide. State of Assam and Others, has been referred to contend against the maintainability of the writ petition being barred by the principle of conclusive res judicata. The answering respondents have thus repudiated the present proceedings to be one by proxy litigants lacking in bona fide. The plea against maintainability of the writ petition on the ground of undue delay, laches, waiver and acquiescence and omission to assail the orders of appointments already made and non-impleadment of the appointees has been brought on record through an additional affidavit. 6. The petitioners in their affidavit-in-reply while reiterating and reaffirming the averments made in the writ petition, have refuted the contention of 1982 Rules being framed under Article 309 of the Constitution of India as unfounded and a travesty of truth. They have avowed total misreading of the provisions of 1977 Act, more particularly Section 8 thereof and have dismissed the pleaded stand of the respondents as a whole to be frivolous and conjectural. 7. Mr. Mishra has, in the above pleaded backdrop insistently, urged that the 1991 and the 2003 Rules are vividly unconstitutional in the teeth of 1982 Rules framed in exercise of the rule making power conferred by section 8 of Act 1977. The learned senior counsel has asserted that the 1991 and the 2003 Rules purportedly framed under Article 309 of the Constitution of India can, by no means, validly trench upon a field already occupied by a law made by the State Legislature and, thus ought to be adjudged unconstitutional null and void. Referring to section 8 of the 1977 Act, conferring the rule-making power and the text of the enactment in extenso, Mr. Misra has maintained that as required thereunder, the 1982 Rules had been duly placed before the Assam Legislative Assembly during its budget session on 22.03.1983, thus conclusively affirming its genesis as the yield of the 1977 Act. As the rule making power contemplated in Article 309 of the Constitution of India is to provide for a temporary arrangement till a law is enacted by an appropriate Legislature, the 1982 Rules obviously framed under the 1977 Act could not have been transformed into one under Article 309 of the Constitution of India by merely effecting amendments to the preamble thereof, he urged. As the Act 1977 clearly mandates that the provisions thereof are implementable only by rules framed thereunder, the 1991 and the 2003 Rules ostensibly framed under Article 309 of the Constitution of India cannot supplant the 1982 Rules, he insisted. Mr. Mishra maintained that the amendments to the 1982 Rules effected by the 1991 Rules and the repeal thereof by the 2003 Rules are, thus not only inconsequential, but also demonstrative of impermissible and unauthorized legislative misadventures. Vis-a-vis the pleas of delay, want of impugnment of the orders of appointment on the culmination of the last selection process, non-impleadment of the recruits bearing on the maintainability of the impeachment of the 1991 and 2003 Rules, the learned Senior Counsel, on the basis of the documents on record, has urged that the earlier process initiated in the year 2002 had been under the 1982 Rules, but was aborted and it was, thereafter again in the year 2010, after 8 years that the current exercise was launched under the 2003 Rules, in which, the additional academic qualification of B.Ed. and BT was introduced, thus disqualifying many senior and otherwise eligible persons to participate therein. According to the learned senior counsel, the introduction of this additional academic qualification precipitated a spate of writ petitions before this Court and the challenge having been dismissed, the impugnment of the vires of the 1991 and the 2003 Rules has been laid. Mr. Mishra, thus contended that the assailment of the vires of the 1991 Rules and the 2003 Rules in this backdrop thus cannot be cast aside on the ground of undue delay as lapse of time per se does not validate any law if otherwise invalid. The learned senior counsel insisted that as the direct consequence of invalidity of the 1991 Rules and the 2003 Rules would be a total annihilation of the selection process involved, challenge to the individual orders of appointment on the basis thereof and the impleadment of the appointees is inessential. Mr. Misra relied on the following decisions of the Hon'ble Apex Court to reinforce his assertions:- (i) Hans Muller of Nurenburg Vs. Superintendent, Presidency Jail, Calcutta and Others, AIR 1955 SC 367 (ii) B.S. Yadav and Others Vs. State of Haryana and Others, AIR 1981 SC 561 (iii) Motor General Traders and Another Vs. Mr. Misra relied on the following decisions of the Hon'ble Apex Court to reinforce his assertions:- (i) Hans Muller of Nurenburg Vs. Superintendent, Presidency Jail, Calcutta and Others, AIR 1955 SC 367 (ii) B.S. Yadav and Others Vs. State of Haryana and Others, AIR 1981 SC 561 (iii) Motor General Traders and Another Vs. State of Andhra Pradesh and Others, (1983) 2 SCALE 513 (iv) Shri A.B. Krishna and Others Vs. The State of Karnataka and Others, AIR 1998 SC 1050 (v) D.R. Yadav and Another Vs. R.K. Singh and Another, , (vi) Sapam Jiten Singh and Others Vs. Manipur Public Service Commission, Imphal and Another, (2012) 2 GLT 893. 8. Mr. Saikia in emphatic refutation of the above, to start with, jettisoned the maintainability of the impeachment of the vires of the two Rules. He contended that the 1991 and the 2003 Rules though in force since their inception, no impugnment of their validity ever being made earlier, the purported impugnment is inexplicably belated and ought to be dismissed in limine. While reiterating that in view of the likely impact of the assailment or the vires of the Rules involved, if upheld, on the already completed selection process, the omission to challenge the orders of appointment and the non-impleadment of the recruits, pe se, have rendered the same (challenge) non-cognizable in law, the learned Addl. Advocate General has further pleaded that the selected candidates having been appointed, a vested right in them to continue in service has accrued, which ought not to be lightly interfered with at the instance of the petitioners. He has urged further that as meanwhile a challenge to the introduction of the academic qualification of B.Ed/BT by the 2003 Rules as a condition of eligibility for the post of Headmaster/Superintendent in the High School has been decisively negated by this Court in Kanak Ch. Nath & Ors. Vs. State of Assam & Ors., 2002 (1) GLT 728, the instant endeavour is also barred by the principle of the constructive res judicata and ought to be spurned in limine more particularly, as through the impugned selection process, regular appointments to the post of Headmaster in High Schools of the State could be made after one and half decades. 9. Apart from these preliminary objections and without prejudice thereto, the learned Addl. 9. Apart from these preliminary objections and without prejudice thereto, the learned Addl. Advocate General, has assiduously maintained that as the Act, 1977 did not apparently contemplate any condition of service or norms of recruitment to service of the employees, it did not axiomatically confer any rule making power to provide therefor and thus the 1982 Rules could by no means be construed to have been framed thereunder. Referring to the 1982 Rules notified at the first instance to have been framed U/s. 3(3) of the 1977 Act as an obvious procedural error of no legal consequence, Mr. Saikia insisted that the same was appropriately rectified by the 1991 Rules with retrospective effect by proclaiming the 1982 Rules to be a yield of the invocation of powers under Article 309 of the Constitution of India from its very inception. Referring to the 1991 amendments occasioned in the 1982 Rules remodeling the preamble thereof, amongst others, to provide for the 'conditions of service' of the teachers of the secondary schools and prescribing a preference to the candidates possessed of B.Ed./B.T. degrees in the matter of selection for the post of Principal in Grade-I and that of Headmaster and Superintendent of Grade-II in service, the learned Addl. Advocate General, Assam has insisted that the same has been given a retrospective effect from the date on and from which the principal rules (1982 Rules) had come into force, signifying that the same (1982 Rules) had been for all intents and purposes formulated under Article 309 of the Constitution of India with the amendment integrated therein from its very inception. That by the 1997 amendments to the 1982 Rules, while reiterating that the same (1982 Rules) had been framed under Article 309 of the Constitution of India, provisions were made also for 'recruitment' to the service, was underlined by Mr. Saikia. Distinguishing the difference between "conditions of service" and "terms of recruitment to service", the learned Addl. Advocate General argued that the 1982 Rules as originally framed were obviously not under the Act. According to him, the petitioner having failed to take advantage out of the process initiated under the 1982 Rules as designed by these amendments in the year 1999, they ought not to be permitted to repudiate the process undertaken and implemented under the 2003 Rules. According to him, the petitioner having failed to take advantage out of the process initiated under the 1982 Rules as designed by these amendments in the year 1999, they ought not to be permitted to repudiate the process undertaken and implemented under the 2003 Rules. He urged as well that exercise of rule making power under Article 309 of the Constitution of India is permissible, even in the face of an existing statute providing for the eventualities not accounted for by the enactment. As the photo copies laid by the petitioner to suggest placement of the 1982 Rules before the State Assembly clearly indicate that the same was, after the publication thereof on 27.05.1982, these are of no consequence, he urged. The learned Addl. Advocate General pleaded that as admittedly the validity of the 1991 Rules and the 1997 Rules had not been questioned at any earlier point of time, those have been rendered final and absolute with their enforcement over the years. The petitioners having submitted themselves to the 1991 Rules and the further amendments incorporated in the year 1997, they are, at this distant point of time, estopped from questioning the validity of the 1982 Rules in the amended form on the ground of transgression of the doctrine of occupied field, he insisted. Mr. Saikia has thus sought to repel the denunciation of the 1991 Rules and the 2003 Rules to be patently unsustainable besides being misconceived. On instructions Mr. Saikia has apprised this Court that since after the framing of the Rules, the concerned Directorate had disintegrated into three or four Directorates, for which the records pertaining thereto could not be immediately located. He thus pleaded that the affirmation by the deponent of the averments in the State affidavit pertaining to the provenance of the 1982 Rules to be true to his knowledge being based on available contemporaneous official records, ought not to be faulted with. In buttressal of his arguments, he placed reliance on the following decisions of the Hon'ble Apex Court: (i) Hukumchand Mills Ltd. Vs. The State of Madhya Bharat and Another, AIR 1964 SC 1329 (ii) Raj Kumar Vs. Union of India (UOI) and Others, AIR 1975 SC 1116 (iii) Government of Andhra Pradesh and Others Vs. M.A. Kareem and Others, (1990) 2 SCALE 493 (iv) Syed Khalid Rizvi and Others and Ramesh Prasad Singh and Others Vs. The State of Madhya Bharat and Another, AIR 1964 SC 1329 (ii) Raj Kumar Vs. Union of India (UOI) and Others, AIR 1975 SC 1116 (iii) Government of Andhra Pradesh and Others Vs. M.A. Kareem and Others, (1990) 2 SCALE 493 (iv) Syed Khalid Rizvi and Others and Ramesh Prasad Singh and Others Vs. Union of India (UOI) and Others, (1992) JT 169 Supp. (v) State Bank of Indore Vs. Govindrao, (1997) 1 JT 655 (vi) Chandravathi P.K. & Ors. Vs. C.K. Saji & Ors. Vs. State of U.P. & Ors., (2004) 3 SCC 735, (vii) Hindustan Lever and Another Vs. State of Maharashtra and Another, AIR 2004 SC 326 (viii) Chairman, U.P. Jal Nigam and Another Vs. Jaswant Singh and Another, AIR 2007 SC 924 (ix) Sadananda Halo and Others Vs. Momtaz Ali Sheikh and Others, (2008) 3 JT 74 (x) S. Nagaraj (dead) by LRs. and Others Vs. B.R. Vasudeva Murthy and Others etc. etc., (2010) 2 JT 185 (1) (xi) Omprakash Verma and Others Vs. State of Andhra Pradesh and Others, (2010) 11 JT 366 (xii) Public Service Commission, Uttaranchal Vs. Mamta Bisht and Others, AIR 2010 SC 2613 (xiii) M. Nagabhushana Vs. State of Karnataka and Others, AIR 2011 SC 1113 (xiv) Cauvery Coffee Traders, Mangalore Vs. Hornor Resources (Intern.) Company Ltd., (2011) 10 SCALE 419 And of this Court in Kanak Chandra Nath Vs. State of Assam and Others, (2011) 128 FLR 447 . 10. Mr. Mishra, in reply not only did contend with particular reference to Section 81 of the Evidence Act, 1872 that the authenticity and the finality of the 1982 Rules in the form and substance as published in the issue dated 29.05.1982 of the Assam Gazette (Extra Ordinary) has to be presumed unless convincingly rebutted, he also drew the attention of the Court to the list of Business for the Assam Legislative Assembly (Budget Session, 1983) scheduled for 22.03.1983 as well as the proceedings of the Budget Session of the State Assembly dated 22.03.1983 and 16.03.1988 to demonstrate that the 1982 Rules in fact had been laid before it (Assam State Legislative Assembly) by the departmental Minister on 22.03.1983 and 16.03.1988 as enjoined by Section 8(3) of Act, 1977. Mr. Mishra drawing the attention of this Court to this sub-section in particular emphasized that the same permitted laying down of the rules even after the notification thereof. Mr. Mishra drawing the attention of this Court to this sub-section in particular emphasized that the same permitted laying down of the rules even after the notification thereof. He asserted that the laying of the 1982 Rules on 16.03.1988 was following an amendment thereto in the year 1987 and, thus cannot be trivialized to be an act of empty formality. The learned Sr. Counsel to persuasively endorse the assertion that the 1982 Rules had for all intents and purposes framed U/s. 8 of Act, 1977 relied on various provisions thereof as well as on those of the parent enactments. He contended with reference inter alia to Section 3(2), (3), (4) and Section 4 of the Act in conjunction with Rule 13(2), (3), (4) & (5) that the 1982 Rules had obviously been framed under the Act, 1977. As the Rules did specifically provide for the service conditions of the employees contemplated under the 1977 Act, it was patently impermissible to tinker with the same by projecting it as one under Article 309 of the Constitution of India by amending its preamble and providing superficial touchups in a futile bid to undo a valid act of subordinate legislation, he urged. The learned Senior Counsel critically dismissed the justification offered in support of the affirmation of the departmental affidavit that the 1982 Rules had been framed under Rule 309 of the Constitution of India was true to the knowledge of the deponent. He wound up his arguments by emphatically asserting that the principle of constructive res judicata is not applicable qua the impeachment of the vires of the 1991 Rules and the 2003 Rules in the contextual facts. The following decisions of the Hon'ble Apex Court were relied upon: (i) State of Andhra Pradesh, etc., etc. Vs. S.K. Mohinuddin, etc., etc, AIR 1994 SC 1474 (ii) Nand Kishore Vs. State of Punjab, (1995) 71 FLR 938 (iii) I.T.C. Bhadrachalam Paperboards and Another Vs. Mandal Revenue Officer, A.P. and Others, (1996) 8 JT 67 (iv) D.R. Yadav and Another Vs. R.K. Singh and Another, AIR 2003 SC 3935 (v) State of Uttar Pradesh Vs. Singhara Singh and Others, AIR 1964 SC 358 No argument in supplementation has been advanced on behalf of the other petitioners/appellants. 11. The pleaded facts to the extent essential to assay the emerging issues have received our due attention. R.K. Singh and Another, AIR 2003 SC 3935 (v) State of Uttar Pradesh Vs. Singhara Singh and Others, AIR 1964 SC 358 No argument in supplementation has been advanced on behalf of the other petitioners/appellants. 11. The pleaded facts to the extent essential to assay the emerging issues have received our due attention. To reiterate, the factual backdrop precipitating in the assailments seeking adjudication is, in essence, common with insignificant peripheral divagations, so much so, that the determination on the assailment of the vires of 1991 Rules and the 2003 Rules would conclusively decide the fate of all the proceedings in hand. 12. The frontal remonstrance of delay, non-impleadment and constructive res judicata need to be addressed before entering the thicket of legislative conundrum. The teachers in the fray had admittedly joined the Assam Secondary Education (Provincialised) Service as defined by the 1982 Rules following the provincialization of the Secondary Education in terms of the Act, 1977 and continued as members thereof as borne out by the records. As a process had been initiated in the year 1999 by the Education Department of the State for appointment to the post of Headmaster/Headmistress of the Schools governed by the 1977 Act/1982 Rules and though interview was held for the purpose, the exercise remained incomplete. Even after the advent of the 2003 Rules, immediate steps for appointment to the aforementioned posts on regular basis did not follow and it was only on 04.11.2010 that the Director of Secondary Education Assam-cum-Member Secretary, State Selection Board, Assam did publish an advertisement in the local dailies soliciting participation of the intending and eligible candidates amongst others for the post of Headmaster/Headmistress of High Schools and High Madras as mentioning in clear terms that the process would be administered as per the provisions of the 2003 Rules, which inter alia prescribed the minimum qualification for promotion to these posts to be graduate in Arts/Science/Commerce with B.T./B.Ed. and teaching experience of at least 10 years as Graduate Teachers. The enjoinment of the qualification of B.T./B.Ed. in particular rendered the petitioners/appellants ineligible for such promotion, though in terms of the 1982 Rules, which did not insist for these additional academic requisites in imperative terms, they were qualified for being considered for the higher post of Headmaster/Headmistress in the service. True it is that, though the 2003 Rules stipulating this additional qualification of B.T./B.Ed. in particular rendered the petitioners/appellants ineligible for such promotion, though in terms of the 1982 Rules, which did not insist for these additional academic requisites in imperative terms, they were qualified for being considered for the higher post of Headmaster/Headmistress in the service. True it is that, though the 2003 Rules stipulating this additional qualification of B.T./B.Ed. had after being published in the issue dated 12.08.2003 of Assam Gazette(Extra Ordinary) remained in force, without any indictment of its validity as a whole till the present challenge, noticeably, however these Rules for the first time, after the enforcement thereof, had been invoked for the process initiated by the advertisement dated 04.11.2010, whereby the serving teachers of the concerned educational institutions sans the degree of B.Ed./B.T. were disqualified even for being considered for promotion to the higher post of Headmaster/Headmistress. It is undisputed as well that, selectively though, the prescription of B.Ed./B.T. as a condition of eligibility had been put to challenge before this Court individually as well as collectively in very many writ petitions and eventually, by the decision rendered in Kanak Chandra Nath & Ors. (supra) a Division Bench of this Court rejected the same on 31.01.2012. No impugnment of the vires of the 2003 Rules having been laid therein, logically no issue in that perspective had either figured in that adjudication nor was debated upon. Be that as it may, the impeachment of the 1991 Rules and the 2003 Rules on the fronts projected, deserve a serious scrutiny and thus presents a legal issue of considerable moment. 13. As it is, the Hon'ble Apex Court in Motor General Traders (supra) had observed that mere lapse of time does not lend validity to a provision which is otherwise bad and quoted the following extract from W.A. Wynes: Legislative, Executive and Judicial Powers in Australia, Fifth Edition, Page 33 with approval: Time does not run in favour of legislation. If it is ultra vires, it cannot gain legal strength from long failure on the part of lawyers to perceive and set up its invalidity. Albeit, lateness in an attack upon the constitutionality of a statute is but a reason for exercising special caution in examining the arguments by which the attack is supported. If it is ultra vires, it cannot gain legal strength from long failure on the part of lawyers to perceive and set up its invalidity. Albeit, lateness in an attack upon the constitutionality of a statute is but a reason for exercising special caution in examining the arguments by which the attack is supported. Apt is also the enunciation of the Hon'ble Apex Court as recalled in Hans Mullar of Nurenburg (Supra) that persons who can impugn a given piece of legislation are those who are aggrieved thereby. 14. In Govt. of Andhra Pradesh & Ors. Vs. M.A. Kareem & Ors. (supra) and in State Bank of India Vs. Govindral (supra), the Hon'ble Apex Court in the textual facts disapproved the undue delay in invoking the extraordinary jurisdiction of the superior Courts for legal remedy and negated the challenge laid. While it cannot be gainsaid that any long and unexplained delay contingent on the attendant facts and circumstances may be a sufficient consideration against the initiation of a curial process by a party guilty of deliberate negligence, inaction and laches, having regard to the sequence of events recited hereinabove, we are not inclined to construe the present assailment to be afflicted by the vice of unconscionable delay. 15. Their Lordships of the Apex Court in U.P. Jal Nigam & Anr. (supra) while dwelling on the concept of acquiescence as a factor against grant of judicial remedy, observed that the same did not necessarily signify inaction against violation of a right in progress but assent as well if such transgression is complete to one's knowledge. It was held that in such an eventuality, it would be unjust to give the claimant a remedy where by his conduct he has waived the same or had put the other party in a position wherefrom it would be unreasonable to dislodge him and restore the claimant thereto. 16. The Hon'ble Apex Court in Cauvery Coffee Traders, Mangalore (supra) in the same vein held that a party cannot be permitted to 'blow hot and cold, 'fast and loose' and 'approbate and reprobate'. Their Lordships remarked that where one intentionally accepts the benefits of a contract or conveyance or an order, he is estopped to deny the validity or the binding effect in him of such contract or conveyance or order. Their Lordships remarked that where one intentionally accepts the benefits of a contract or conveyance or an order, he is estopped to deny the validity or the binding effect in him of such contract or conveyance or order. This, it was emphasized, was a rule of equity to be applied, however, in a manner not in violation of the principles of right and good conscience. 17. As the pleaded facts would disclose, the process for promotion in the year 1999 in which the petitioners and others similar in service Assistant Teachers had participated was not completed and it was only on the expiry of a decade thereafter that a fresh exercise was launched under the 2003 Rules following the repeal thereby of the 1982 Rules. Noticeably, in the 1982 Rules, as amended by the 1991 Rules, the qualification of B.T./B.Ed. had been prescribed as a norm for preference or extra weightage and not as an obligatory criterion of eligibility. With such a preferential qualification though prescribed by the 1991 Rules, the petitioners were not per se rendered ineligible or disqualified for promotion. The decisions on estoppel and acquiescence, thus, in our estimate, do not debar them from impeaching the validity of the 1991 Rules and the 2003 Rules. 18. The cavil of non-impleadment of the appointees on the culmination of the process conducted under the 2003 Rules and the omission to challenge their orders of appointment also does not convincingly weigh with this Court. Indubitably, the appointments are the consequence of the application of the 2003 Rules, a set of codified norms and the State and its functionaries as the initiator and the regulator of the process are the impleaded respondents. As the custodian of the 2003 Rules as well as the process undertaken, the State along with its departmental authorities being on records, in our considered view the challenge to the vires of the 1991 Rules and the 2003 Rules ought not to be repelled on these counts as well. 19. This view draws sustenance from the determination made in this regard by a Division Bench of this court in Sapam Jiten Singh and Ors. (supra). Therein, the validity of the Manipur Civil Services Combined Competitive (Preliminary) Examination, 2012 conducted by the Manipur Public Service Commission had been questioned by a few unsuccessful candidates without impleading those who had been declared to have passed the same. (supra). Therein, the validity of the Manipur Civil Services Combined Competitive (Preliminary) Examination, 2012 conducted by the Manipur Public Service Commission had been questioned by a few unsuccessful candidates without impleading those who had been declared to have passed the same. While negating the demur based on their non-impleadment, this court following a survey of a few decisions of the Hon'ble Apex Court concluded that the Commission as the purveyor of the impugned process having been impleaded as a contesting respondent, the successful candidates in the Preliminary Examination were not necessary parties. In arriving at this finding, it was noticed that no specific relief against them in particular had been sought for and that their presence was not indispensable for a fair, complete and final adjudication of the issues involved. The observation of the Hon'ble Apex Court in The General Manager, South Central Railway, Secunderabad and Another Vs. A.V.R. Siddhantti and Others, AIR 1974 SC 1755 to the effect that the decision on the formulation of seniority of uniform application was in the nature of a policy decision and that the challenge thereto was analogous to the impeachment of the constitutionality of a statutory rule regarding seniority was taken note of. 20. Whereas in Sadananda Haloi & Ors. (supra) the Hon'ble Apex Court disapproved the furtherance of the proceedings without ensuring supply of copies of the pleadings on record to the selected candidates who had entered appearance being violative of the principles of fair hearing, in Public Service Commission, Uttaranchal Vs. Mamta Bisht & Ors. (supra), it was underlined after noticing the distinction between a necessary party, a proper party and a proforma party that if a person is likely to suffer from the order of the Court, he ought to be impleaded as a necessary party, lest an infringement of the doctrine of natural justice would ensue. 21. To reiterate, the denunciation being of the validity of the legislations by the State on the ground of a statutory bar and constitutional interdiction, in our view, having regard to the framework of the proceedings in hand, non-impleadment of the selected candidates ipso facto would not be fatal. 22. Qua the resistance on the plea of constructive res judicata, the decision of this Court in Kanak Chandra Nath & Ors. 22. Qua the resistance on the plea of constructive res judicata, the decision of this Court in Kanak Chandra Nath & Ors. (Supra) being not referable to the issue of constitutionality of the 1991 Rules and the 2003 Rules it, in our comprehension, does not pose the bar as contended. 23. In M. Nagabushana (Supra), their Lordships of the Apex Court exhaustively dwelt upon the principle of res judicata and held that any proceeding initiated in breach thereof would be an abuse of the process of Court. Their Lordships recalled the observations made by the Constitution Bench of the Hon'ble Apex Court in The Direct Recruit Class-II Engineering Officers' Association and others Vs. State of Maharashtra and others, AIR 1990 SC 1607 that an adjudication is conclusive and final not only as to the actual matter determined but to every other matter, which the parties might or ought to have litigated and have/had decided as incidental to or essentially connected with the subject matter of the litigation as comprehended in Explanation IV of Section 11 of the Code of Civil Procedure. That this principle of constructive res judicata is applicable to a writ proceeding was affirmed as well. There is no wrangle at the Bar on this pristine legal proposition hallowed by time. 24. In Nand Kishore (supra) the appellant who had joined the service in the erstwhile Patiala State was drawn as an Assistant on the formation of Pepsu State which later on merged with the State of Punjab whereafter, he was inducted in the same capacity in the Punjab Civil Secretariat. He was compulsorily retired on the completion of 10 years of qualifying service. Though, he challenged this decision of compulsory retirement, which was as per Rule 5.32 of the Punjab Civil Service Rules, Vol-II, he did not assail the validity thereof. The writ petition was dismissed. With the decision of the Hon'ble Apex Court in Moti Ram Deka etc. Vs. General Manager, N.E.F. Railways, Maligaon, Pandu, etc., AIR 1964 SC 600 to the effect that a person who substantially held a permanent post had a right to continue in the service subject to the exceptions, i.e. (1) superannuation; and (2) compulsory retirement after a minimum period of service with the pre-condition of fixation of a proper age of superannuation, the appellant instituted a suit for a declaration that the decision of his compulsory retirement was invalid. The State of Punjab in the lis, amongst others, raised the plea of res judicata. The learned trial court overruled this objection and decreed the suit. In appeal, preferred by the State of Punjab, the jurisdictional High Court referred this issue to the Full Bench, which sustained the preliminary objection. Their Lordships of the Apex Court in the contextual facts in para 19 of the aforesaid decision observed as hereunder: 19. It would then have to be seen the twin play of the notion of deemed constitutionality and bar of constructive res judicata. Raising the constitutionality of a provision of law, as it appears to us, stands on a different footing than raising a matter on a bare question of law, or mixed question of law and fact or on fact. There is a presumption always in favour of constitutionality of the law. The onus is heavy on the person challenging it. It is by the discharge of onus that that the presumption of constitutionality can be crossed over. When a person enters a court for relief and does not challenge the constitutionality of the law governing the matters directly and substantially in issue, it only means and implies that he goes by the presumption of constitutionality. He cannot on this stance be deemed to have raised the question of constitutionality and the question of constitutionality to have been decided against him and such matter to have been directly and substantially in issue. The constitutionality of the Rule relating to compulsory retirement cannot be deemed to have been questioned and decided against the appellant on the principles of "might and ought" or it being "directly and substantially in issue". It cannot be taken as a rule that one of the pleas either by the plaintiff or the defendant, in every suit or proceeding, must of necessity relate to the constitutionality of the law on which the cause is founded or defended in order to obviate the plea of constructive res judicata being raised in an eventuality. It cannot also be taken as a rule that constitutionality of the law involved is a matter directly and substantially in issue, and if not raised renders a mute decision in favour of its constitutionality barring the plea being raised in a subsequent suit. It cannot also be taken as a rule that constitutionality of the law involved is a matter directly and substantially in issue, and if not raised renders a mute decision in favour of its constitutionality barring the plea being raised in a subsequent suit. Their Lordships thus enunciated in emphatic terms that it could not be taken as a rule that one of the pleas, in every suit or proceeding by the parties to it must and necessarily relate to the constitutionality of the law on which the case is founded or defended in order to obviate the plea of constructive res judicata. It was held further that it could also not be taken as a rule that the constitutionality of the law involved is a matter directly and substantially in issue and if not raised would render a mute decision involved of its constitutionality to bar such a plea in a subsequent suit or proceeding. This authoritative and dialectical elucidation on the applicability of the principle of res judicata vis-a-vis the challenge to the constitutionality of a statute, as the contextual facts would attest, was notwithstanding the otherwise recognized canon of finality of the pronouncement of a court of competent jurisdiction and the ultimate public policy involved. 25. On a cumulative review of the propositions propounded as hereinabove, we are not inclined to non-suit the impeachment of the vires of the 1991 Rules and the 2003 Rules on the plea of constructive res judicata. 26. The pronouncements of the Hon'ble Apex Court in Om Prakash Verma & Ors. (supra) and in S. Nagaraj (Dead) by LRs & Ors. (supra) on the doctrine of constructive res judicata do not detract in essence from the proposition laid down in Nand Kishore (supra). 27. The above determinations on the otherwise formidable incipient disceptations now permit the inquisition of the impeachment of the vires of the Rules involved on merits. 28. The Assam Secondary Education (Provincialisation) Act, 1977 i.e. the Act had received the assent of the Governor of the State on 10.12.77 whereafter it was published in the issue dated 12.12.77 of the Assam Gazette (Extraordinary). 28. The Assam Secondary Education (Provincialisation) Act, 1977 i.e. the Act had received the assent of the Governor of the State on 10.12.77 whereafter it was published in the issue dated 12.12.77 of the Assam Gazette (Extraordinary). As the preamble thereof would indicate, this statute of the State Legislative Assembly was enacted to provide for provincialisation of the secondary education covered by the deficit scheme of the Government of Assam for its improvement and better control and management of such education in the State and was enforced with effect from 1.10.77. The definition of 'appointed day', 'date of appointment', 'employee', 'existing employee' and 'Prescribed' as contained in Section 2(i), (ii), (v), (vi) and (ix) are extracted hereinbelow: 2.(i) "appointed day" in relation to any area means the day on which this Act comes into force in that area; (ii) "date of appointment" means, in relation to any employee, the date on which he joined the service of a school imparting Secondary Education on and from the date of its coming under adhoc system of grants in aid; .... .... (v) "employee" means a person in the employment of a school working against a regularly sanctioned post and whose appointment has been approved by the School authority wherever such approval was necessary; (vi) "existing employee" means an employee who is, on the appointed day, in the regular pay roll, employee against regular sanction and whose appointment has been approved by the school authority; .... .... (ix) "Prescribed" means prescribed by rules made under this Act; 29. Section 3 enjoined that on and from the appointed day, all employees of all the secondary schools in the State of Assam would be deemed to have become employees of the State Government with effect from the date of appointment on the following terms and conditions: (1) All rules including service rules and rules of conduct and discipline which are applicable to Government servants of corresponding ranks shall be applicable to all employees. (2) All employees shall get such emoluments as salary and allowances as may be prescribed: Provided that no employee shall get as emoluments any amount which is less than the amount he was getting immediately before the appointed day. (3) Services of all the employees shall be encadred in appropriate cadres in accordance with the rules framed by the State Government for this purpose. (3) Services of all the employees shall be encadred in appropriate cadres in accordance with the rules framed by the State Government for this purpose. (4) The inter-se seniority of the employees of a cadre or class shall be determined on the basis of principles laid down in the rules framed under this Act. 30. Section 4 provided for superannuation, pension, gratuity etc. and also left at liberty any existing employee other than a Grade IV employee who did not intend to go on superannuation on attaining the age of 58 years and desired to continue till completion of 60 years, to give an option in writing to that effect in the manner prescribed. Section 8 conferred rule making power on the State Government by publishing a notification in the Official Gazette for giving effect to the provisions of the Act. Without prejudice to the generality of such power, u/s 8(2) the State Government was empowered to make Rules to provide, amongst others, for-- i. fixation of the powers, duties and responsibilities of all the employees of the secondary schools; ii. the manner in which the option was to be exercised for continuing beyond 58 years upto the age of 60 years; iii. the manner of refund of the contribution made by an employee towards provident fund; iv. preparation and maintenance of service records of the employees; and v. management of the secondary schools. 31. Under Sub-section (3) of Section 8 every such rule was to be obligatorily laid as soon as it was made, before the Assam Legislative Assembly while it was in session for a total period of fourteen days comprised in one session or two in succession. This provision further required that if before the expiry of such a session or immediately thereafter the Assam Legislative Assembly agreed in making any modification in the rule or agreed that the rule should not be made, the rule would thereafter have effect only in such modified form or would be of no effect, as the case may be, subject, however, with the consequence that any such modification or annulment would be without prejudice to the validity of anything previously done under that rule. 32. 32. The 1982 Rules (as hereinafter referred to as 'the Rules') followed, albeit after almost five years and was notified vide Notification No. ESS.75/78/Pt.III/27 dated 27.5.1982 and was published under the orders of the Governor in the issue dated 29.5.1982 of the Assam Gazette (Extraordinary). The Rules in unambiguous terms proclaimed to have been framed in exercise of the powers conferred u/s 3(3) of the Act 1977 by the Governor of the State for regulating the service conditions of the teachers and employees of secondary schools and were to come into effect with immediate effect. "Service" was defined in Rule 2(k) as the Assam Secondary Education (Provincialised) Service. Whereas Rule 3 provided the class and cadre thereunder, Rule 3(2) enjoined that the posts encompassed in the classes enumerated would form independent cadres and the members of any cadre would have no claim for appointment in higher cadre except in accordance with the provisions of the Rules. 33. Part-II of the Rules categorised the methods of induction in service/relevant cadres by direct recruitment and recruitment by promotion. The general conditions of service catalogued under Part-IV referred, amongst others, to reservation and seniority with the essential norms for enforcement/computation thereof. The aspects of confirmation, pension, Contributory Provident Fund/General Provident Fund etc. were also addressed. Rule 14 enjoined that except as provided in the Act and the Rules, all matters relating to pay and allowances, leave, pension, appointing time, discipline, transfer, deputation and other conditions of service would be regulated by the general rules or orders of the Government for the time being in force. Rule 16 left the matter of interpretation of any provision of the Rules in case of any dispute, to the Government and provided as well that in the event of any difficulty in the implementation of the provisions of the Rules the Government could by order do anything not inconsistent with the provisions of the Act and the Rules which appeared to him to be necessary or expedient for the purpose of removing the same. The schedules accompanying the Rules furnished the cadre strength, the academic qualifications of eligibility for the various posts and also the pay scales attached thereto. 34. The schedules accompanying the Rules furnished the cadre strength, the academic qualifications of eligibility for the various posts and also the pay scales attached thereto. 34. To complete the factual narration, it was after a time lag of almost nine years that vide Notification No. EPG888/89/85 dated 30.12.1991 under the orders of the Governor of the State, the 1982 Rules were sought to be amended. The emerging 1991 Rules represented that it was a transmuted form of the 1982 Rules amended in exercise of the powers conferred under the proviso to Article 309 of the Constitution of India. The following amendments being of formidable significance are extracted hereinbelow: 2. Amendment of the Preamble.- (1) In the principal Rules, for the preamble the following shall be substituted namely:- No. ESS.75/78/Pt.III/27, dated the 27th May, 1982-In exercise of the powers conferred under the proviso to Article 309 of the Assam Constitution of India, the Governor of Assam is pleased to make the following rules regulating the conditions of service of the teachers of the Secondary Schools which have been provincialised under the Assam Secondary Education (Provincialisation) Act, 1977 in the manner hereinafter appearing namely. (2) Notwithstanding anything contained in sub-rule (2) of Rule 1, the provision contained in sub-rule (1) above, shall be deemed to have come into force from the date on which the Principal Rules came into force. .... .... (8) Amendment to Rule 9.-In the Principal Rules, for Rule 9, the following shall be substituted; namely- .... .... (3) A member of the Service either belonging to Grade II or Grade III and having 15 years continuous teaching experience or to Grade IV and having 17 years continuous teaching experience shall be eligible for selection for the post of Principal in Grade I of the Service. Provided that in all the cases preference shall be given to candidates having a Post-Graduate Degree in Teaching/a degree in Post-Graduate Teaching (B.Ed. or B.T.) (4) A member of the Service either belonging to Grade III and having 10 years continuous teaching experience or belonging to Grade IV cadre and having 12 years continuous teaching experience shall be eligible for selection for the post of Headmaster or Superintendent in Grade II of the Service; Provided mat in all the cases preference shall be given to candidates having a Post-Graduate Degree in Teaching/a degree in Post-Graduate Teaching (B.Ed. or B.T.). or B.T.). (5) The Post of Vice Principal in Grade II of the Service shall be filled up by promotion school wise on seniority basis from the Graduate Teachers, having 10 years continuous teaching experience. Provided that in all cases preference shall be given to candidates having a Post-Graduate Degree in Teaching/a degree in Post-Graduate Teaching (B.Ed. or B.T.). 35. A plain perusal of this Notification would unequivocally demonstrate that thereby the 1982 Rules were sought to be remodeled in exercise of the powers conferred under the proviso to Article 309 of the Constitution of India by amending its preamble and also some of the provisions originally formulated. 36. In an identical manner, the 1982 Rules were further amended in exercise of the powers conferred under the proviso to Article 309 of the Constitution of India vide Notification No. B(2)H-667/94/162 dated 11.4.1997 issued under the orders of the Governor and were published in the issue dated 11th April, 1997 of the Assam Gazette (Extraordinary). The following amendments occasioned thereby deserve extraction: 2. Insertion of enabling provision: In the principal Rules, before rule 1, the following shall be inserted, and shall be deemed to have been inserted on the date on which the principal Rules came into force, namely:- In exercise of the powers conferred by the proviso to Article 309 of the Constitution of India, the Governor of Assam is hereby pleased to make the following rules regulating the recruitment and conditions of service of teacher of the High and Higher Secondary Schools which have been provincialised under the Assam Secondary Education (Provincialisation) Act, 1977, namely. 37. The above quote would evince that thereby in the preamble the words "recruitment and" were added to that of the 1982 Rules, as amended by the 1991 Rules. Though by the 1997 Rules, other modifications were also introduced, those being not of any decisive relevance vis-a-vis the issues seeking adjudication, no allusion thereto is considered necessary. 38. The last milestone as on date in the legislative pursuit on the theme is marked by the Notification No. B(3)S-723/2001/98 dated 11th August, 2003 issued under the Governor of the State and framed in exercise of the powers under the proviso to Article 309 of the Constitution of India for regulating the recruitment and conditions of service of persons appointed to the Assam Secondary Education (Provincialised) Service. This Notification embodying the 2003 Rules was published in the issue dated 12th August, 2003 of the Assam Gazette (Extraordinary) and thereby repealed all rules corresponding thereto and in force immediately before the commencement thereof. The proviso to Rule 32 to the above effect, however, saved all orders made and action taken under the repealed rules or under any general order ancillary thereto to be valid or as deemed to have been taken under the corresponding provisions of the 2003 Rules. Rule 14(4) in particular while prescribing the conditions of eligibility for the post of Head Master/Head Mistress/Superintendent/Assistant Head Master/Asstt. Head Mistress/Asstt. Superintendent of High/High Madrasa School, predicated that the minimum qualification therefor would be graduate in Arts, Science or Commerce with B.T. or B.Ed. degree. The duration of the teaching experience as graduate teacher for the posts as referred to therein was also mandated. 39. The 2003 Rules, thus, not only sought to efface the 1982 Rules with the amendments thereto made in the year 1991 and 1997 as adverted to hereinabove, the same also obligated B.T. or B.Ed. Degree to be an essential qualification for a serving teacher for consideration for promotion to the aforementioned posts as enumerated in Rule 14(4). Noticeably, these two degrees were not compulsory requisites earlier and were relevant for the purpose of earning preference in the matter of selection for the post of Principal, Vice Principal, Head Master or Superintendent encased in Grade I/Grade II of the Service, as the case may be. 40. On an analytical scrutiny of the provisions of the Act, we are unconvinced, to start with, that it did not, having regard to its underlying objective, namely, provincialisation of the secondary education of the State, contemplate the rule-making power of the State Government to regulate the recruitment and conditions of service of the employees of the Assam Secondary Education (Provincialised) Service vide Section 8 thereof. Noticeably, amongst others, this legislation did envisage employees in such Service-both existing and prospective as is obvious from the definitions of the expressions 'employee' and 'existing employee' as provided in Section 2(v) and 2(vi). Whereas Section 8(1) comprehended endowment of a general rule making power for giving effect to the provisions of the Act, the themes on which the rules are contemplated in Sub-section (2) thereof are by no means exhaustive and at best are illustrative in nature. Whereas Section 8(1) comprehended endowment of a general rule making power for giving effect to the provisions of the Act, the themes on which the rules are contemplated in Sub-section (2) thereof are by no means exhaustive and at best are illustrative in nature. In any view of the matter, the cataloguing of the subject matters on which rules could be framed by the State Government by way of delegated legislation u/s 8(2) are in addition to those on which rules could be framed generally by invoking the power conferred u/s 8(1). In other words, the scope and ambit of the rule making power engrafted in Section 8(1) by no means can be construed to have been truncated or rendered otiose by the limited topics listed u/s 8(2). 41. This view, amongst others, finds reaffirmation from Section 3(3) of the Act which enjoined that the services of all the employees would be encadred in appropriate cadres in accordance with the rules framed by the State Government for the purpose. Having regard to the predicated purpose of the enactment i.e. provincialisation of the secondary education with all its incidental, legal and factual implications, in our comprehension, the encadrement of the services of the employees unmistakably is suggestive of all concomitant initiatives to regulate the recruitment and conditions of their service. A static configuration of the cadre of the Service was neither legislatively comprehended, nor intended. The provisions, amongst others, for the emoluments as salary and allowances, inter-se seniority of the employees of a cadre or class, the option to continue in service beyond the normal age of superannuation of 58 years to be made by the rules framed under the Act are clear pointers, in our view, of the empowerment of the State Government to this effect u/s 8 of the Act. 42. A bare look at the 1982 Rules in its original form would authenticate in irrefutable terms that the same were framed under the Act for regulating the service conditions of the teachers and employees of the secondary schools. No doubt the Notification dated 27.5.1982 embodying these rules mentioned me same to have been framed u/s 3(3) of the Act, it is an error apparent on the face of the record, the power being traceable to Section 8 of the Act. No doubt the Notification dated 27.5.1982 embodying these rules mentioned me same to have been framed u/s 3(3) of the Act, it is an error apparent on the face of the record, the power being traceable to Section 8 of the Act. This error which is clearly typographical in nature, is wholly inconsequential as has been held by the Hon'ble Apex Court in Hukum Chand Mills Ltd. (supra) and in Om Prakash & Ors. (supra) wherein their Lordships had underlined that wrong reference of a legal provision does not by itself render any Act invalid or incompetent if the same is otherwise traceable to a source of power. These Rules in conformity with the prescript of Section 3(3) did outline the class and cadre in the Service and vide Rule 3(2) enjoined that the posts mentioned in the classes referred to therein would form independent cadres and that the members of any cadre would have no claim for appointment in higher cadre except in accordance with the provisions thereof. Logically, therefore, these Rules provided two modes of recruitment to the Service i.e., direct recruitment and promotion. The conditions of eligibility for induction through these two modes were also prescribed. Apart therefrom, to reiterate, the general conditions of service i.e. reservation, inter-se seniority, pay, confirmation, pension etc. were also provided for. A plain reading of the provisions of these Rules reveals repeated references of 'appointed day' and 'existing employees' stemming from the Act demonstrating in unequivocal terms that the Rules are the yield of the powers conferred by Section 8 thereof. Rule 14 clearly delineates the are to be regulated by the general rules or orders of the Government for the time being in force to be beyond the domain covered by the Act and the 1982 Rules. Due primacy to the Act and the 1982 Rules is discernible in Rule 16(2) which prohibits any order or Act inconsistent therewith. 43. A conjoint reading of the Act and the 1982 Rules, thus, according to us, leaves no manner of doubt that the latter had been framed in exercise of powers u/s 8 of the statute. As it is, the concept of provincialisation of secondary education did enfold all organizational aspects including recruitment, service conditions of employees-both existing and prospective and as mandated by the enactment, the purposes thereof were sought to be eventuated by the 1982 Rules. As it is, the concept of provincialisation of secondary education did enfold all organizational aspects including recruitment, service conditions of employees-both existing and prospective and as mandated by the enactment, the purposes thereof were sought to be eventuated by the 1982 Rules. That there has been a conscious invocation of the rule making power u/s 8 is even otherwise admitted by the respondents. Their pleaded case is one of error as Section 8, in their comprehension, did not confer the rule making power on the State Government qua recruitment and service conditions of the employees of the Assam Secondary Education (Provincialised) Service. 44. In Syed Khaled Rizvi & Ors. (supra), the Apex Court while dealing with the IPS (Appointment by Promotion) Regulations, 1955 held that fulfillment of the conditions of eligibility for consideration for promotion to the Indian Police Service from State Service were conditions of recruitment and once a promotee had been recruited by promotion, the conditions thereafter like pay, pension were conditions of service. Their Lordships held that compliance of the conditions of recruitment were mandatory for appointment by promotion to the Indian Police Service. Referring to the decision of a Constitution Bench of the Apex Court in Mohammad Shujat Ali and Others Vs. Union of India (UOI) and Others, AIR 1974 SC 1631 it was recalled that a Rule which confers a right to actual promotion or a right to be considered for promotion is a rule prescribing conditions of service. It also reiterated the same proposition in Mohd. Bhakar vs. Krishna Reddy, 1970 SLR 768 of another Constitution Bench to the same effect. That the conditions of service may be classified as salary, confirmation, promotion, seniority, tenure or termination of service etc. as was held by it in State of Punjab Vs. Kailash Nath, AIR 1989 SC 558 was reiterated as well. Marking a distinction from the textual facts which involved promotion from State Service to the Indian Police Service subject to fulfillment of the conditions of recruitment therefor, their Lordships enunciated that if an employee is initially recruited in the Service according to the Rules and promotion was regulated in the same Rules to the higher echelons of the Service, such promotion may be considered to be a condition of service. That the expression "conditions of service" would encompass in its purview the age of superannuation was pronounced by the Hon'ble Apex Court in State of Andhra Pradesh vs. Sk. Mohinuddin (supra). Significantly, the petitioners herein are admittedly in- service candidates serving as Assistant Teachers in various secondary schools of the State for whom promotion to the next higher post would assuredly be a condition of service. No concept of their promotion to a different service is involved. 45. Noticeably, the 1982 Rules had been framed after five years of the enactment of the Act and the 1991 Rules incorporating first set of amendments thereto were framed after nine years therefrom. Significantly, even assuming that there was any basis for such an impression of the State authorities, the reasons therefor and the preparatory steps to remedy the error must have been documented having regard to the significance and the serious import of the consequences of undoing the act of delegated legislation. 46. Inspite of the opportunities granted, admittedly, the respondents could not lay with this Court the relevant records to ascertain the reasons that weighed with the State respondents in endeavouring to remodel the 1982 Rules by integrating the amendments thereto without abrogating the same in accordance with law as conceived of inter alia in Section 8(3) of the Act. To reiterate, the 1982 Rules had been framed in exercise of the powers u/s 8 of the Act and even supposedly it was mistakenly done, in our view, the same could not have been mauled in the manner done in purported exercise of power under Article 309 of the Constitution of India. The attempt to provide retrospectivity to the amended 1982 Rules, in the teeth of invalidity of the exercise, is wholly insignificant. Mere alteration or redesigning of the preamble of the 1982 Rules and the extrinsic refinements at places did not efface the same from the statute book or validly transform it to a legislative instrument constitutionally conceptualized in exercise of powers under Article 309 of the Constitution. 47. In State of U.P. Vs. Singhara Singh & Ors. (supra), their Lordships of the Apex Court reiterated the oft quoted proposition in Nazir Ahmed Vs. 47. In State of U.P. Vs. Singhara Singh & Ors. (supra), their Lordships of the Apex Court reiterated the oft quoted proposition in Nazir Ahmed Vs. The King Emperor, 63 IND A. p. 372 that when a power is given to do a certain thing in a certain way, it must be done in that way or not at all and that the other methods of performance are necessarily forbidden. 48. That the State had not only acknowledged the 1982 Rules to be an yield of the exercise of power u/s 8 of the Act, but had pursued it to be so even after its amendment in the year 1987 is apparent from the list of business for the proceedings of the Assam Legislative Assembly (Budget Sessions) dated 22.3.1983 and 16.3.1988, in course whereof, the same in its original form and with the amendments upto 1987 were to be laid before it. Though the learned Addl. Advocate General sought to dismiss these documents as inconsequential, as the purported dates of laying of the Rules were after those of the publication thereof in the Official Gazette, Section 8 of the Act, in our view, does not mandate such laying to be a condition precedent for the publication thereof as enjoined by Section 8(1). The language employed in Section 8(3), in our estimate, does not support this plea of the State respondents. In absence of any cogent, convincing and contemporaneous records to the contrary to mutilate the genuineness of these documents, it is evident that not only the State respondents recognized the 1982 Rules to have been framed in exercise of the powers u/s 8, but also had, as obligated by Section 8(3), arranged to lay the same with the State Legislative Assembly. The publication of these Rules in the Official Gazette also lends an indubitable reinforcement to this deduction of ours. 49. In I.T.C. Bhadrachalam Paper Boards & Anr. (supra), it was held with reference to Section 11(1) of the Andhra Pradesh Non-Agricultural Lands Assessment Act, 1963 that the exemption notification contemplated thereunder was as required to be mandatorily published in the Andhra Pradesh Gazette. 49. In I.T.C. Bhadrachalam Paper Boards & Anr. (supra), it was held with reference to Section 11(1) of the Andhra Pradesh Non-Agricultural Lands Assessment Act, 1963 that the exemption notification contemplated thereunder was as required to be mandatorily published in the Andhra Pradesh Gazette. Their Lordships underlined that the publication of an order or Rule in the Gazette is the official confirmation of the making of such an order or rule and that the version as propounded in the Gazette is final which can be, amongst others, taken judicial note of by a Court. 50. Article 309 of the Constitution, the sheet anchor of the legislative exploits of the State respondents to project the 1982 Rules as one formulated under the said constitutional provision is extracted below for ready reference: 309. Recruitment and conditions of service of persons serving the Union or a State.--Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State: Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act. 51. 51. It is patent from the above quote that the recruitment and the conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of a State are to be governed by statutory enactments of the appropriate legislature, a liberty being left to the President in the case of services and posts in connection with the affairs of the Union and to the Governor of a State in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment and the conditions of service of such persons to such services and posts until provision in that behalf is made by or under a statute of the appropriate legislature so much so that the rules made by the President or the Governor, as the case may be, would have effect subject to the provisions of such legislation. 52. In Raj Kumar (supra), the Hon'ble Apex Court had propounded that Rules made under the proviso to Article 309 of the Constitution are legislative in character and, therefore, can be given retrospective effect. While acknowledging the power of the State to accord retrospective effect to a Rule framed under Article 309, their Lordships in Chandravathi P.K. & Ors. (supra) elucidated that explicit, clear and express provision therefor ought to be made or such a consequence should follow by necessary implication but no such retrospectivity can be inferred by surmises and conjectures. It was held as well that different Rules may be framed having regard to the nature of the job and other relevant factors. 53. The decision of the Apex Court in Hindustan Lever & Anr. (supra) has been introduced on behalf of the State respondents to suggest that the concept of occupied field is relevant in case of laws framed with reference to the entries in List-Ill only of Schedule-7 to the Constitution of India This observation, as the relevant text of that decision would reveal, was with reference to legislations qua the entries in the three lists to that schedule and the analogy thereof cannot possibly be drawn to the present factual setting, the challenge being against entrenchment by rules under Article 309 of the Constitution on an area dwelt upon by an independent set of statutory Rules. 54. In A.B. Krishna & Ors. 54. In A.B. Krishna & Ors. (supra), the State of Karnataka had framed the Mysore Fire Force (Cadre Recruitment) Rules, 1971 in exercise of powers conferred by Section 39 of the Fire Force Act, 1964 and under these rules promotion to the post of Leading Firemen was to be made from that of Firemen/Firemen Drivers. In view of a policy decision, the Karnataka Civil Service (General Recruitment) Rules, 1971 were amended which permitted promotion to all posts other than that of the Head of the Department or of the Additional Head of the Department on the basis of seniority-cum-merit and not by selection through a qualifying examination. This was in conflict with the procedure for promotion, amongst others, to the post of Fireman/Fireman Driver under the Mysore Fire Force (Cadre Recruitment) Rules, 1971. Noticeably, the Karnataka Civil Service (General Recruitment) Rules, 1971 had been framed under Article 309 of the Constitution of India In this context, their Lordships held that it was primarily the legislature i.e. the Parliament or the State Legislative Assembly which is vested with the power to make laws regulating recruitment and the conditions of service of persons appointed to public services and posts, in connection with the affairs of the Union or the State. Referring to Article 309 of the Constitution, it was held that the rule-making function was a legislative one but the proviso thereto accords power to the President or the Governor to make service rules only as a transitional provision so much so that the powers can be exercised only so long as the legislature does not make any Act whereby recruitment to public posts and provisions for other conditions of service relating thereto are made. It was held that the Fire Service having been constituted under the Fire Force Act, 1964 and the Mysore Fire Force (Cadre Recruitment) Rules, 1971 having been framed in exercise of the powers u/s 39 of the statute, any amendment in the Karnataka Civil Service (General Recruitment) Rules, 1971 would not affect the special provisions validly made for the Fire Service. Their Lordships proclaimed that under the scheme of Article 309 of the Constitution, once the legislature intervenes to enact a law regulating the conditions of service, the power of the Executive including the President or the Governor, as the case may be, is totally displaced on the principle of "doctrine of occupied field". Their Lordships proclaimed that under the scheme of Article 309 of the Constitution, once the legislature intervenes to enact a law regulating the conditions of service, the power of the Executive including the President or the Governor, as the case may be, is totally displaced on the principle of "doctrine of occupied field". Their Lordships added that if any matter is not touched by that enactment, it would then be competent for the Executive either to issue executive instructions or to make rules under Article 309 in respect of that matter. Clearly distinguishing these two jurisdictions, it was held that the powers under Article 309 of the Constitution cannot be exercised by the Governor, if the legislature had already made a law and the field is occupied. It was underlined that the rules made in exercise of the rule-making power given under a statute constitute delegated or subordinate legislation but the rules framed under Article 309 could not be accorded the same status and, therefore, on the principle of "occupied field" a rule framed under Article 309 of the Constitution cannot supercede a rule made under the statute. 55. Reiterating the above in principle, it was held in D.R. Yadav & Anr. (supra) that the rules framed under Article 309 of the Constitution would apply so long as a statute or statutory Rules or any other subordinate legislation governing service are not enacted or made or not otherwise operating in the field. It was reaffirmed that the rules made under the proviso to Article 309 of the Constitution are for a transitional period and the same would give way to the special rules once framed. It was further emphasized that if a statute or rules made thereunder was/were already operating in the field, the general rules made under the proviso to Article 309 would not apply to the service created thereunder. 56. That the exercise of power under the proviso to Article 309 by the President or the Governor, as the case may be, is contingent on the absence of any statutory enactment by the appropriate legislature on the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State is, thus, the obvious constitutional mandate. In that view of the matter, having regard to the scheme of the Act and the 1982 Rules which on our interpretation had been framed to facilitate the objective of the enactment comprehending the aspect of recruitment and conditions of service of the employees-existing and prospective amendments in the manner done by the Assam Secondary Education (Provincialised) Service, the 1991 therein are non-est in law. Resultantly, the 1982 Rules with such amendments cannot be contemplated to be one framed under Article 309 of the Constitution of India. The 1991 amendments, therefore, are liable to be adjudged unconstitutional, null and void. By the same analogy of reasoning, the 2003 Rules framed under the same constitutional provision cannot repeal, displace or dislodge the 1982 Rules in its original form. 57. To reiterate, the 1982 Rules having been framed in exercise of the statutory power by Section 8 of the Act, no legislative act represented to have been undertaken under Article 309 of the Constitution can efface the same. The challenge to the validity of the 2003 Rules, thus, has to be sustained as well. Axiomatically, the 1991 Rules and the 2003 Rules are hereby adjudged as unconstitutional, null and void. 58. The above notwithstanding, the fact that meanwhile the process initiated vide the advertisement dated 2.11.2010 had been completed and that the candidates selected have been appointed/promoted on the basis of their performance and are continuing in their service for about 1 1/2 years cannot be disregarded. This Court while issuing notice in the instant petition and other connected proceedings on 10.4.2012 after taking note of this aspect had observed that any appointment made on the basis of the impugned selection would be subject to the final orders. No interim order was passed either stalling the process or prohibiting appointments on the basis thereof. Admittedly, a prior challenge to the validity of the prescription of B.T. and B.Ed. as an essential condition of eligibility engrafted in Rule 14 of the 2003 Rules bad been negated by a Division Bench of this Court. The selection process thus had progressed unimpeded and culminated in appointments of about 1100 candidates who are presently continuing in service. Admittedly, the selected candidates have not been impleaded though, having regard to the assailment adjudicated upon, as already held, they are not necessary parties. The selection process thus had progressed unimpeded and culminated in appointments of about 1100 candidates who are presently continuing in service. Admittedly, the selected candidates have not been impleaded though, having regard to the assailment adjudicated upon, as already held, they are not necessary parties. Be that as it may, indubitably an exercise to adjudge the suitability of the candidates for recruitment/promotion had been undertaken by the State authorities. The process has also not been impeached to be vitiated by any other infirmity and has been sought to be annulled only on the ground that it had been administered under the 2003 Rules framed under Article 309 of the Constitution of India. 59. On a totality of the considerations as above, we are thus not inclined, the determination of the challenge to the vires of the 1991 Rules and the 2003 Rules notwithstanding, to annul the process of selection and the appointments based thereon. The determination of invalidation of the 1991 Rules and the 2003 Rules would thus be prospective in effect. The proceedings in hand are answered accordingly. No costs.