JUDGMENT : Deepak Gupta, J. This appeal is directed against the judgment, dated 23.12.2011, delivered by a learned Single Judge of this Court in CWP (T) No. 10665 of 2008, whereby he allowed the writ petition and quashed the notifications dated 19.05.2003 (Annexure A-1), 12.06.1990 (Annexure A-2), 01.08.1994 (Annexure A-3), 30.07.1994 (Annexure A-5) and further quashed the notifications dated 06.08.1998 (Annexure R-3) and 21.03.2001 (Annexure R-4). The whole dispute revolves around the appointment of the appellant, Dr. Jogi Ram Gaur, as Assistant Director/Deputy Director in the State Forensic Science Laboratory (SFSL) of Himachal Pradesh. Admittedly, the appellant joined as Assistant Director with the H.P. Government on deputation basis on 02.04.1990. This post was upgraded and Dr. Gaur promoted and absorbed as Deputy Director on 01.08.1994. He, in fact, was promoted as Director of the SFSL, H.P. on ad hoc basis on 06.01.1998 and regularly promoted as Director on 21.03.2001. On 19.05.2003, the State of Himachal Pradesh passed an order notionally absorbing the petitioner in service with effect from his initial date of joining the State of Himachal Pradesh on 02.04.1990. After this order was passed, the private respondents filed an Original Application in the erstwhile H.P. State Administrative Tribunal and in this Original Application, they mainly prayed for grant of the following reliefs: (i) to set aside and quash the Notification dated 19.05.2003, 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 Annexure 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. 2. On the abolition of the State Administrative Tribunal, the said OA was transferred to this Court in terms of the Himachal Pradesh Administrative Tribunal (Transfer of Decided and Pending Cases and Applications) Act, 2008, and registered as CWP (T) No. 10665 of 2008. 2. On the abolition of the State Administrative Tribunal, the said OA was transferred to this Court in terms of the Himachal Pradesh Administrative Tribunal (Transfer of Decided and Pending Cases and Applications) Act, 2008, and registered as CWP (T) No. 10665 of 2008. The learned Single Judge allowed the Original Application and not had only set aside the orders which were challenged in the Original Application, but also set aside the appointment of Dr. Gaur as Director both, on ad hoc and regular basis on the ground that when the foundation goes, the superstructure can also not stand. This judgment is under challenge in this appeal. 3. Mr. K.D. Sood, learned Senior Advocate appearing for the appellant, submits that the learned Single Judge has brushed aside the serious contentions raised by the appellant in his reply. The main contentions raised by Mr. Sood are the following: That the petition having been filed after a long delay of more than 14 years was barred on the principles of delay and laches. That the original writ petitioners had not even applied for the post of Assistant Director and were not eligible to hold the said post and as such, had no locus standi to challenge the appointment of the appellant. That when the petitioners had not even challenged the appointment/promotion of the appellant as Director, either on ad hoc basis or on regular basis, which orders were passed on 06.01.1998 and 02.03.2001, the Hon'ble Single Judge could not have granted the reliefs which were not even claimed in the petition. That the learned Single Judge erred in holding that the Cabinet decision dated 25.04.2011 ratifying the earlier action and curing the defects, if any, was invalid and inconsequential when there was no challenge to the said Cabinet decision by the private respondents-original writ petitioners. That the learned Single Judge erred in holding that the Cabinet decision dated 25.04.2011 had not been placed on record and furthermore, since it had not been notified in the official gazette or issued in the name of the Governor, the same was of no value. That the learned Single Judge could not have granted the relief which amounted to ordering the termination of the services of the appellant without giving further directions as to where he should go after the termination of his services. That the learned Single Judge could not have granted the relief which amounted to ordering the termination of the services of the appellant without giving further directions as to where he should go after the termination of his services. That the writ petition was bad for non joinder of necessary parties, i.e. the State of Haryana and the H.P. Public Service Commission and should have been dismissed on these grounds. That the learned Single Judge erred in allowing the petition at this belated stage when the appellant is on the verge of retirement and is due to retire on 31st August, 2012 and the persons who were juniors to him in the State of Haryana had been promoted much earlier to the post of the Director, FSL in Haryana. 4. Mr. Vivek Singh Thakur, learned Additional Advocate General, states that the Cabinet decision is legal and valid and defects, if any, stand cured and, therefore, supports the appellants. 5. Mr. Ashok Sharma, Learned Counsel for the private respondents, submits that there are no delay and laches in this case, since the order of absorption was passed only in the year 2003 and there is no earlier order of absorption. He submits that the earlier order, Annexure A-3, is only an order of approval but not an order of absorption, which should have been passed by the State of Haryana. He further submits that the appellant has not been relieved from Haryana and, therefore, continues to have his lien in the State of Haryana. He also submits that approval of the H.P. Public Service Commission was not obtained and these conditions should have been met before appointing the appellant. He submits that since the appellant was absorbed only in the year 2003, there is no delay in filing the petition. Further, according to Mr. Sharma, since his clients were not in the field of choice, they could not be termed to be aggrieved parties in the years 1990, 1993 and 1994. This was the first opportunity for them to vent their grievances in the year 2003, which they have done within time. Mr. Sharma further submits that the appellant was only on deputation till 2003 and since his services were ordered to be absorbed by the Government in 2003, this gave the writ petitioners a fresh cause of action. 6. This was the first opportunity for them to vent their grievances in the year 2003, which they have done within time. Mr. Sharma further submits that the appellant was only on deputation till 2003 and since his services were ordered to be absorbed by the Government in 2003, this gave the writ petitioners a fresh cause of action. 6. He further submits that the appointment of the appellant is void ab initio, since it is illegal and based on fraud and cannot, therefore, be permitted to continue. In this behalf, he submits that the appellant was ineligible for being appointed as Assistant Director from day one; the Finance Department was not consulted; the Personnel Department was not consulted; the Council of Ministers was misled and the rules, which were mandatory, were not complied with. In the alternative, he submits that even if there is delay, this illegality cannot be perpetuated, since the initial appointment of the appellant was void ab initio. 7. His next contention is that the appellant never opted to terminate his lien in the State of Haryana. He also submits that once the initial appointment of the appellant is invalid and void, then all other subsequent promotions etc. have to fall with the initial appointment. He also contended that the Rules of Business being mandatory, the decision of the Cabinet, dated 25.04.2011, cannot be made effective till an order in the name of the Governor is passed. He further submits that the entire action of appointing the appellant was fraudulent and there is malice in law and since the very appointment is void, relief has rightly been granted to the petitioners. According to him, the State of Haryana is not a necessary party since deputation of the appellant was inter se between the States of Himachal Pradesh and Haryana and it is for the appellant to approach the State of Haryana once his services in Himachal Pradesh have been terminated. 8. Both the sides have referred to a number of authorities on all these issues. Before taking up the discussion issuewise, it would be appropriate to give the factual matrix of the case. Factual Matrix: 9. The appellant is a Post Graduate (M.Sc.) in Anthropology, which he passed from Punjab University, Chandigarh in the year 1976. He obtained his doctorate (Ph.D.) in Forensic Serology from Punjab University, Chandigarh in the year 1990. Before taking up the discussion issuewise, it would be appropriate to give the factual matrix of the case. Factual Matrix: 9. The appellant is a Post Graduate (M.Sc.) in Anthropology, which he passed from Punjab University, Chandigarh in the year 1976. He obtained his doctorate (Ph.D.) in Forensic Serology from Punjab University, Chandigarh in the year 1990. He was appointed as Scientific Assistant (Serology) in Forensic Science Laboratory, Haryana on 27.06.1978 and thereafter, appointed as Senior Scientific Assistant on 15.02.1980. He was selected as Senior Scientific Officer (Serology) on 05.11.1980 by the Haryana Public Service Commission and confirmed as Senior Scientific Officer on 10.01.1983. The original writ petitioner No. 1, Dr. B.R. Rawat, had obtained Degree in M.Sc. (Chemistry) in the year 1979 from the Himachal Pradesh University, M.Phil. (Chemistry) in the year 1981 and did his Ph.D. in the year 1985. He was appointed as Scientific Officer (Chemistry and Toxicology) on 17.12.1990 after being selected by the H.P. Public Service Commission. This post was one rank below the post of Assistant Director. Original writ petitioner No. 2, Arun Sharma, passed his M.Sc. in Forensic Science from Punjabi University, Patiala, in the year 1984 and obtained his doctorate from the Punjab University, Chandigarh, in the year 1989. On 16.08.1991, he was appointed as Scientific Officer (Biology and Serology) through the H.P. Public Service Commission. This post was also one level below the post of Assistant Director. Original writ petitioner No. 3, Dr. Minakshi Mahajan, passed her M.Sc. (Chemistry) from Kurukshetra University in the year 1993 and obtained Ph.D. From the same university in the year 1997. She joined the FSL HP on 13.06.2000 as Assistant Director (Documents and Photography). At this time, the appellant, Dr. J.R. Gaur, was already working as Director. 10. It would be apparent that when Dr. Gaur joined as Scientific Officer in the Haryana FSL, the original writ petitioners were still students and, in fact, writ petitioner No. 3 obtained her M.Sc. degree after the appellant had joined services in Himachal Pradesh. 11. The Forensic Science Laboratory in Himachal Pradesh was set up in the year 1988. Therefore, there was a need to have services of competent scientific experts in the field. Since adequate number of qualified persons were not available in the State of Himachal Pradesh it was decided to take on deputation staff from the other States/institutions. 11. The Forensic Science Laboratory in Himachal Pradesh was set up in the year 1988. Therefore, there was a need to have services of competent scientific experts in the field. Since adequate number of qualified persons were not available in the State of Himachal Pradesh it was decided to take on deputation staff from the other States/institutions. From the records, which were made available to us, it is apparent that requisition in this behalf, for sending officers on deputation to Himachal Pradesh, to man the State Forensic Science Laboratory were sent to the Chief Secretaries of all the States and Union Territories of India, all Director Generals of Police of the States and Union Territories of India, all the Directors of the Forensic Science Laboratories in India and other allied institutions and universities. It is, thus, apparent that an effort was made to give wide publicity to the selection process. 12. Applications were invited for filling up two posts of Assistant Directors, two posts of Scientific Officers, four posts of Scientific Assistants, four posts of Laboratory Assistants and four posts of Laboratory Attendants. The eligibility criteria for the post of Assistant Director, FSL, was as follows: Educational Qualifications: 1. Two Assistant Directors, F.S.L. ESSENTIAL. Master's degree in Chemistry/Physics/Botany/Zoology/Bio - Chemistry/Forensic Science/Mathematics from a recognized 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. 13. The appellant also applied for the post of Assistant Director. He was M.Sc. (Anthropology) and was not M.Sc. 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. 13. The appellant also applied for the post of Assistant Director. He was M.Sc. (Anthropology) and was not M.Sc. in one of the subjects which are mentioned in the educational qualifications referred to above. The appellant was duly selected. He joined and worked as Assistant Director on deputation basis and his deputation was extended from time to time. The appellant wrote to the Government of Himachal Pradesh that either he be repatriated to the State of Haryana and he was only willing to work in the State of Himachal Pradesh if he was promoted and absorbed as Deputy Director. Finally, the Government took a decision to upgrade the post of Assistant Director, which the appellant was holding, to that of Deputy Director and the appellant was promoted to this post on 01.08.1994. Thereafter, he was promoted as Deputy Director, both on ad hoc basis and regular basis as pointed out above. 14. An order was passed on 19.05.2003, Annexure A-1, which reads as follows: Government of Himachal Pradesh "Home Department" No.Home(A)B(1)12/86-II Dated Shimla-171002, 19-5-2003 NOTIFICATION In supersession of this department 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. The original writ petitioners, as already mentioned above, claimed that this gives them a cause of action to challenge the initial appointment of the appellant. Whether Dr. Gaur fulfilled the necessary qualifications to hold the post of Assistant Director and if not, was his appointment illegal or irregular? 15. The essential educational qualifications for the post of Assistant Director have been referred to above and they did not include the subject of Anthropology. It has been contended on behalf of the appellant that he had studied Physical Anthropology and was, therefore, qualified to hold this post. We are unable to accept the contention of the appellant that he had done his M.Sc. in Physical Anthropology. It has been contended on behalf of the appellant that he had studied Physical Anthropology and was, therefore, qualified to hold this post. We are unable to accept the contention of the appellant that he had done his M.Sc. in Physical Anthropology. That may have been one of the subjects, but his degree clearly shows that he was granted M.Sc. in the subject of Anthropology, which is not covered in the various qualifications set out. It is also a fact that no formal order of relaxation has been passed in this behalf. 16. In this behalf, we may refer to a few decisions cited by the parties. In Pramod Kumar Vs. U.P. Secondary Education Services Commission and Others, AIR 2008 SC 1817 , the Apex Court was considering a case wherein as per the statutory provisions, B.Ed. degree was one of the essential qualifications. Appellant-Pramod Kumar was appointed on the basis of a B.Ed. degree issued from an institution which was later found to be not recognized by the University Grants Commission. Thereafter, a show cause notice was issued to him on the ground that he had obtained his appointment on the basis of a fabricated and illegal B.Ed. degree. An inquiry was held and, therefore, his services were terminated. The Apex Court held as follows: 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 regularised, particularly, when the statute in no unmistakable term says so. Only an irregularity can be. It would be important to note that this authority only lays down that ordinarily lack of educational qualification cannot be condoned. 17. In Mohd. Sohrab Khan Vs. Aligarh Muslim University and Others, (2009) 2 JT 666 the Aligarh Muslim University issued an advertisement inviting applications to the post of Lecturer in Chemistry amongst other posts. The essential qualification laid down was Master's Degree in the appropriate branches of teaching. One of the candidates had a Master's Degree in Chemistry, whereas the other candidate was holding Master's Degree in Industrial Chemistry. The candidate holding the Degree in Industrial Chemistry was appointed and the other candidate challenged his appointment. The essential qualification laid down was Master's Degree in the appropriate branches of teaching. One of the candidates had a Master's Degree in Chemistry, whereas the other candidate was holding Master's Degree in Industrial Chemistry. The candidate holding the Degree in Industrial Chemistry was appointed and the other candidate challenged his appointment. The Apex Court held that since in the advertisement, it was not mentioned that persons holding a Master's Degree in Industrial Chemistry would be eligible, other persons holding such degree may not have applied for the post. The main reason which weighed with the Apex Court was that midway during the stage of selection, the qualifications could not have been changed by the Selection Committee. 18. Mr. Ashok Sharma, Learned Counsel for the private respondents, has placed heavy reliance on the judgment of Apex Court in State of Orissa and Another Vs. Mamata Mohanty, (2011) 2 SCALE 377 . This is a very elaborate judgment on the subject. The respondent was appointed as a Lecturer in a college in the year 1979. The Government of Orissa came out with a notification in the year 1989 granting higher scales of pay to persons who had a better academic record, i.e. 54% or its equivalent grade in a Master's course. The respondent did not claim any relief till the year 2005 when she filed a writ petition praying for the grant of the higher scale. At this stage, the State of Orissa contested the writ petition by challenging the very appointment of the respondent to the post of Lecturer, since she had only scored 40% in her Master's course as against the minimum eligibility criteria of 54%. The Apex Court held as follows: 37. It is a settled legal proposition that if an order is bad in its inception, it does not get sanctified at a later stage. A subsequent action/development cannot validate an action which was not lawful at its inception, for the reason that the illegality strikes at the root of the order. It would be beyond the competence of any authority to validate such an order. It would be ironic to permit a person to rely upon a law, in violation of which he has obtained the benefits. If an order at the initial stage is bad in law, then all further proceedings consequent thereto will be nonest and have to be necessarily set aside. It would be ironic to permit a person to rely upon a law, in violation of which he has obtained the benefits. If an order at the initial stage is bad in law, then all further proceedings consequent thereto will be nonest and have to be necessarily set aside. A right in law exists only and only when it has a lawful origin. (Vide Upen Chandra Gogoi v. State of Assam, Mangal Prasad Tamoli v. Narvadeshwar Mishra and Ritesh Tewari v. State of U.P.) xx xx xx 50. In the absence of an enabling provision for grant of relaxation, no relaxation can be made. Even if such a power is provided under the statute, it cannot be exercised arbitrarily. (See Union of India v. Dharam Pal.) Such a power cannot be exercised treating it to be an implied, incidental or necessary power for execution of the statutory provisions. Even an implied power is to be exercised with care and caution with reasonable means to remove the obstructions or overcome the resistance in enforcing the statutory provisions or executing its command. Incidental and ancillary powers cannot be used in utter disregard of the object of the statute. Such power can be exercised only to make such legislation effective so that the ultimate power will not become illusory, which otherwise would be contrary to the intent of the legislature. (Vide Matajog Dobey v. H.S. Bhaeri and State of Karnataka v. Vishwabharathi House Building Coop. Society.) 19. In Union of India (UOI) and Another Vs. Narendra Singh, (2007) 14 SCALE 364 , the employee was promoted though he was not eligible or qualified. Thereafter, the department rectified the promotion order. It was contended that this mistake could not be rectified. The Apex Court held as follows: It is true that the mistake was of the Department and the respondent was promoted though he was not eligible and qualified. But, we cannot countenance the submission of the respondent that the mistake cannot be corrected. Mistakes re mistakes and they can always be corrected by following due process of law. In ICAR v. T.K. Suryanarayan it was held that if erroneous promotion is given by wrongly interpreting the rules, the employer cannot be prevented from applying the rules rightly and in correcting the mistake. It may cause hardship to the employees but a court of law cannot ignore statutory rules. 20. In ICAR v. T.K. Suryanarayan it was held that if erroneous promotion is given by wrongly interpreting the rules, the employer cannot be prevented from applying the rules rightly and in correcting the mistake. It may cause hardship to the employees but a court of law cannot ignore statutory rules. 20. It would, however, be pertinent to mention that in the case before the Apex Court, though the employee had been wrongly promoted to the post of Senior Accountant, since he had been holding the post for the last seventeen years and was on the verge of retirement, the Apex Court further held as under: The last prayer on behalf of the respondent, however, needs to be sympathetically considered. The respondent is holding the post of Senior Accountant (Functional) since last seventeen years. He is on the verge of retirement, so much so that only few days have remained. He will be reaching the age of superannuation by the end of this month i.e. 31-12-2007. In our view, therefore, it would not be appropriate now to revert the respondent to the post of Accountant for very short period. We, therefore, direct the appellants to continue the respondent as Senior Accountant (Functional) till he reaches the age of superannuation i.e. up to 31-12-2007. At the same time, we hold that since the action of the authorities was in accordance with statutory rules, an order passed by the Deputy Accountant General cancelling promotion of the respondent and reverting him to his substantive post of Accountant was legal and valid and the respondent could not have been promoted as Senior Accountant, he would be deemed to have retired as Accountant and not as Senior Accountant (Functional) and his pensionary and retiral benefits would be fixed accordingly be treating him as Accountant all throughout. 21. In Ram Sarup Vs. State of Haryana and Others, AIR 1978 SC 1536 , the Apex Court was dealing with a case where the appointment was against the statutory rules and the employee did not fulfill the requirement of minimum experience of holding a particular post, the Apex Court held that the appointment may have been irregular, but would be automatically regularized on the candidate's acquiring required extent of experience while holding the post. The relevant discussion raised is as follows: The question then arises as to what was the effect of breach of clause (1) of Rule 4 of the Rules. Did it have the effect of rendering the appointment wholly void so as to be completely ineffective or merely irregular, so that it could be regularised as and when the appellant acquired the necessary qualifications to hold the post of Labour-cum- Conciliation Officer. We are of the view that the appointment of the appellant was irregular since he did not possess one of the three requisite qualifications but as soon as he acquired the necessary qualification of five years' experience of the working of Labour Laws in any one of the three capacities mentioned in clause (1) of Rule 4 or in any higher capacity, his appointment must be regarded as having been regularised. 22. In District Collector and Chairman, Vizianagaram Social Welfare Residential School Society, Vizianagaram and Another Vs. M. Tripura Sundari Devi, (1990) 1 SCALE 806 , though the appointment of the employee was held to be illegal on the ground that she did not fulfill the minimum educational eligibility criteria, taking into consideration the fact that subsequently the employee had acquired another degree and had attained the qualifications required for the post and was now entitled to hold the post, she was allowed to continue in the job. 23. In the present case, as pointed out above, though the appellant may not have M.Sc. in one of the subjects mentioned, but soon after his deputation and before his formal absorption in the State of Himachal Pradesh, he obtained the doctorate degree in Forensic Serology which was directly related to the post of Assistant Director. 24. In H.C. Puttaswamy and others Vs. The Hon'ble Chief Justice of Karnataka High Court, Bangalore and others, AIR 1991 SC 295 the Chief Justice of the Karnataka High Court made appointments in the subordinate Courts without consulting the Public Service Commission and by bypassing the District Judge. The Apex Court held that these appointments were irregular. The Apex Court, however, went on to hold that since the appointees had continued for a long period of ten years and were not now eligible to hold a post elsewhere in the State, on humanitarian grounds the employees were directed to be regularized without any condition of age limit or passing of written and viva voce test. The Apex Court, however, went on to hold that since the appointees had continued for a long period of ten years and were not now eligible to hold a post elsewhere in the State, on humanitarian grounds the employees were directed to be regularized without any condition of age limit or passing of written and viva voce test. The relevant portion of the discussion reads as follows: 12. Having reached the conclusion about the invalidity of the impugned appointments made by the Chief Justice, we cannot, however, refuse to recognize the consequence that involves on uprooting the appellants. Mr. Gopal Subramanium, counsel for the appellants while highlighting the human problems involved I the case pleaded for sympathetic approach and made an impassioned appeal for allowing the appellants to continue in their respective posts. He has also referred to us several decision of this Court where equitable directions were issued in the interests of justice even though the selection and appointments of candidates were held to be illegal and unsupportable. 13. There is good sense in the plea put forward for the appellants. The human problem stands at the outset in these cases and it is that problem that motivated us in allowing the review petitions. It may be recalled that the appellants re in service for the past 10 years. They are either graduates or double graduates or post-graduates s against the minimum qualification of SSLC required for Second Division Clerks in which cadre they were originally recruited. Some of them seem to have earned higher qualification by hard work during their service. Some of them in the normal course have been promoted to higher cadre. They are now averaged for entry into any other service. It seems that most of them cannot get the benefit of age relaxation under Rule 6 of the Karnataka Civil Services (General Recruitment) Rules, 1977. One could only imagine their untold miseries and of their family if they are at the midstream. Indeed, it would be an act of cruelty at this stage to ask them to appear for written test and viva voce to be conducted by the Public Service Commissioner for fresh selection. (See Lila Dhar v. State of Rajasthan.). 25. In Buddhi Nath Chaudhary and Others Etc. Vs. Indeed, it would be an act of cruelty at this stage to ask them to appear for written test and viva voce to be conducted by the Public Service Commissioner for fresh selection. (See Lila Dhar v. State of Rajasthan.). 25. In Buddhi Nath Chaudhary and Others Etc. Vs. Abahi Kumar and Others, AIR 2001 SC 1176 the Apex Court held that though the selected candidates may not possess necessary experience as per the Rules, now that they have worked in such posts for a long time, they had acquired the requisite experience and lack of experience, if any, had been made good. 26. Each case has to be decided on its own facts. Here is a case where the appellant did not misrepresent any facts. He did not say that he was holding a degree which he did not have. Therefore, his case is different from that of Pramod Kumar's case. This is a case where the State was trying to get the best persons from the other States. The appellant may not have been M.Sc. in one of the subjects mentioned in the eligibility criteria, but the fact is that he had worked in the field of Serology and was working at various levels in FSL Haryana from 1978 till 1990. Therefore, he had twelve years experience in the field of Serology, which is directly related to the post in question. 27. In fact, according to the eligibility criteria cited above, for the post of Assistant Director of the Bio-Chemistry/Serology Division, it was mentioned that the basic qualifications/training/experience should be related to the field of Bio-Chemistry/Serology. As pointed out earlier, the appellant in the year 1990 also obtained doctorate in Forensic Serology which would have direct relation to the post in question. 28. Pursuant to applications being invited for various posts and despite these communications being sent to all the concerned offices and institutions all over the country, Director General of Police, H.P., came to the conclusion that only six candidates met the prescribed requirements for the post of Assistant Director including the appellant. It is obvious from the letter of the Director General of Police addressed to the Commissioner-cum- Secretary (Home) to the Government of Himachal Pradesh, dated 1st November, 1989, that he found that the appellant was suitable to hold the post. It is obvious from the letter of the Director General of Police addressed to the Commissioner-cum- Secretary (Home) to the Government of Himachal Pradesh, dated 1st November, 1989, that he found that the appellant was suitable to hold the post. It would be relevant to refer to the following portion of the letter: xx xx xx 3. An interview was held on 11.10.1989 under the Chairmanship of Director General of Police, HP, Shimla to consider the candidates for their appointments on deputation basis in the State FSL for the post of Asstt. Directors. Out of six eligible/suitable candidates who were called for interview through their Head of Departments/Controlling Officers, only two attended the interview. Namely, (i) Shri J.R. Gaur of FSL, Madhuban; and (ii) Dr. R.K. Garg of Punjabi University Patiala. Both the officers belongs to Biology and Serology discipline. On interview it has been decided by the Selection Committee to offer the post of Asstt. Director, Biology and Serology to Shri J.R. Gaur of FSL, Madhuban (Haryana). xx xx xx The post advertised was Assistant Director, Biology and Serology and the appellant had twelve years experience in the field of serology. Probably this is what weighed in the mind of the Selecting Authority at the relevant time. 29. We are dealing with a matter where the selection was made as far back in the year 1989 and none of the officers, who were directly involved in the selection process, is there to inform the Court as to what weighed with the Selection Committee. It would also be pertinent to mention that after the selection of the appellant, the Home Department observed that the recommendation made by the office of the Director General of Police are based on practical knowledge and eligibility and these persons may be offered the post. Thereafter, the approval of the then Hon'ble Chief Minister was obtained on 02.12.1989 to bring the appellant on deputation to the HPSFSL. Thereafter, the approval of the Public Service Commission was sought which approval was also granted. 30. In this case, approval was granted at the highest level by the Chief Executive Officer of the State and also by the Public Service Commission and the Public Service Commission specifically approved the appointment of Shri J.R. Gaur on deputation basis to the post of Assistant Director. Therefore, Dr. 30. In this case, approval was granted at the highest level by the Chief Executive Officer of the State and also by the Public Service Commission and the Public Service Commission specifically approved the appointment of Shri J.R. Gaur on deputation basis to the post of Assistant Director. Therefore, Dr. Gaur left his post at Haryana and joined service in Himachal Pradesh on 02.04.1990. Nobody challenged his appointment in 1990. He was an M.Sc. and during the year 1990, he obtained a doctorate in Forensic Serology, which is directly concerned with the post of Assistant Director, Biology and Serology, which he was holding. His long experience of twelve years in the field of Serology and his doctorate in the subject of Forensic Serology were very relevant. 31. From the records, it is also apparent that despite repeated efforts, no persons were willing to join the SFL in Himachal Pradesh and, in fact, the other gentleman, Shri R.S. Verma, who was selected, did not even join service in the State of Himachal Pradesh. It is in these peculiar circumstances that the appointment of the appellant, even if illegal or irregular, cannot be said to void ab initio, and, therefore, the challenge to his appointment should have been made at that stage itself or soon thereafter. 32. We are, therefore, of the considered view that applying the principles laid down by the Apex Court in the judgments cited above, the writ petitioners could not have been granted any relief. Delay and Laches: 33. One of the main contentions raised both by the present appellant and the State of Himachal Pradesh was that the petition was highly belated and, therefore, should have been rejected. This contention was summarily rejected by the learned Single Judge of this Court without any detailed discussion on the subject. 34. The High Court in exercise of its writ jurisdiction is both a Court of Equity and of Law. The principle of delay and laches has been explained by Sir Barnes Peacock in Lindsay Petroleum Co. versus Prosper Armstrong Hurd, (1874) 5 PC 221, in the following terms: Now the doctrine of laches in courts of equity is not an arbitrary or a technical doctrine. The principle of delay and laches has been explained by Sir Barnes Peacock in Lindsay Petroleum Co. versus Prosper Armstrong Hurd, (1874) 5 PC 221, in the following terms: Now the doctrine of laches in courts of equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by its conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as it relates to the remedy. 35. This principle settled more than a century ago has been approved by the Apex Court on a number of occasions and in Yunus (Baboobhai) A Hamid Padvekar Vs. State of Maharashtra through its Secretary and Others, (2009) 3 JT 487 , the Apex Court held as follows: 10. 6. Delay or laches is one of the factors which is to be borne in mind by the High court when they exercise their discretionary powers under Article 226 of the Constitution of India. In an appropriate case the High Court may refuse to invoke its extraordinary powers if there is such negligence or omission on the part of the applicant to assert his right as taken in conjunction with the lapse of time and other circumstances, causes prejudice to the opposite party. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prashad v. Controller of Imports and Exports. Of course, the discretion has to be exercised judicially and reasonably. Even where fundamental right is involved the matter is still within the discretion of the Court as pointed out in Durga Prashad v. Controller of Imports and Exports. Of course, the discretion has to be exercised judicially and reasonably. xx xx xx 36. The Apex Court in Tridip Kumar Dingal and Others Vs. State of West Bengal and Others, (2008) 12 JT 587 , held as follows: 56. We are unable to uphold the contention. It is no doubt true that there can be no waiver of fundamental right. But while exercising discretionary jurisdiction under Articles 32, 226, 227 or 136 of the Constitution, this Court takes into account certain factors and one of such considerations is delay and laches on the part of the applicant in approaching a writ court. It is well settled that power to issue a writ is discretionary. One of the grounds for refusing reliefs under Article 32 or 226 of the Constitution is that the petitioner is guilty of delay and laches. 57. If the petitioner wants to invoke jurisdiction of a writ court, he should come to the Court at the earliest reasonably possible opportunity. Inordinate delay in making the motion for a writ will indeed be a good ground for refusing to exercise such discretionary jurisdiction. The underlying object of this principle is not to encourage agitation of stale claims and exhume matters which have already been disposed of or settled or where the rights of third parties have accrued in the meantime (vide State of M.P. v. Bhailal Bhai, Moon Mills Ltd. v. Industrial Court and Bhoop Singh v. Union of India). This principle applies even in case of an infringement of fundamental right (vide Tilokchand Motichand v. H.B. Munshi, Durga Prashad v. Chief Controller of Imports & Exports and Rabindranath Bose v. Union of India). 58. There is no upper limit and there is no lower limit as to when a person can approach a court. The question is one of discretion and has to be decided on the basis of facts before the court depending on and varying from case to case. It will depend upon what the breach of fundamental right and the remedy claimed are and when and how the delay arose. 37. In State of M.P. and Others Vs. The question is one of discretion and has to be decided on the basis of facts before the court depending on and varying from case to case. It will depend upon what the breach of fundamental right and the remedy claimed are and when and how the delay arose. 37. In State of M.P. and Others Vs. Nandlal Jaiswal and Others, AIR 1987 SC 251 , the Apex Court held as follows: Now, it is well settled that the power of the High Court to issue an appropriate writ under Article 226 of the Constitution is discretionary and the High Court in the exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part f the petitioner in filing a writ petition and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in the exercise of its writ jurisdiction. The evolution of this rule of laches or delay is premised upon a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy under the writ jurisdiction because it is likely to cause confusion and public inconvenience and bring in its train new injustices. The rights of third parties may intervene and if the writ jurisdiction is exercised on a writ petition filed after unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. When the writ jurisdiction of the High Court is invoked, unexplained delay coupled with the creation of third party rights in the meanwhile is an important factor which always weighs with the High Court in deciding whether or not to exercise such jurisdiction. xx xx xx 38. In Ramana Dayaram Shetty Vs. International Airport Authority of India and Others, AIR 1979 SC 1628 though the Apex Court held the action of the State as unconstitutional being violative of Article 14 of the Constitution of India, the Apex Court refused to grant any relief to the petitioner only on the ground that the petition had been filed by the petitioners more than five months after the acceptance of the tender of the fourth respondent and during that period the fourth respondent had incurred expenditure amounting to Rs. 1.25 lacs in setting up the restaurant and snack bars. 39. 1.25 lacs in setting up the restaurant and snack bars. 39. In T. Aruna and Others Vs. The Secretary, Andhra Pradesh Public Service Commission and Others, AIR 2001 SC 2114 the Apex Court held that the affected parties got the opportunity to challenge the promotions only when the seniority list was published in the year 1996. We fail to understand how this judgment applies to the present case because even now, it is not the case of the original writ petitioners that they were eligible to hold the post at the relevant time. Their challenge is to the appointment of the appellant on the grounds that the appellant was not eligible to hold the post of Assistant Director and the Public Service Commission was not properly consulted when he was promoted as Deputy Director. Therefore, this judgment is also not applicable to the present case. 40. No doubt, it is true that there is no rigid rule or a strait jacket formula which can be laid down. Amount of delay which may dis-entitle a person to claim relief may vary from case to case and each case has to be decided on its own facts. There may be cases where even a delay of one day or two can be fatal to the petitioner, but where rights of others are not involved and fundamental rights of the petitioner are breached, then long delays can also be condoned. However, when third party rights are created and a person is put to great disadvantage because of the delay in filing the matter, then the petition should be rejected on the principle of delay and laches. 41. Coming to the facts of the present case, the appellant, who had served the Haryana FSL for about twelve years, joined H.P. State Government in the year 1990. The original writ petitioners all joined service thereafter. Petitioners No. 1 and 2 joined service in the years 1990 and 1991. All the petitioners joined service in the SFSL, knowing fully that they were juniors to the appellant. They did not raise any objection at that time. Even in the year 1994, when the post of Assistant Director was upgraded to that of Deputy Director and the appellant joined and was absorbed as Deputy Director, writ petitioners No. 1 and 2 did not raise a murmur. They did not raise any objection at that time. Even in the year 1994, when the post of Assistant Director was upgraded to that of Deputy Director and the appellant joined and was absorbed as Deputy Director, writ petitioners No. 1 and 2 did not raise a murmur. The explanation given on behalf of the writ petitioners is that they were not eligible to hold the post of Deputy Director and hence, had no cause of action. This explanation is meaningless. If the writ petitioners were aggrieved by the very induction of the appellant in the H.P. State Services, then when his deputation came to an end in the year 1994 and he was absorbed in the H.P. State Services, the original writ petitioners had a right to challenge the appointment of the appellant on the ground that the appellant was not eligible to be appointed. 42. Mr. Ashok Sharma, Learned Counsel for the private respondents/original writ petitioners, has relied upon two judgments of the Apex Court in Gopabandhu Biswal Vs. Krishna Chandra Mohanty and Others, AIR 1998 SC 1872 and Shobha Suresh Jumani Vs. Appellate Tribunal, Forfeited Property and Another, AIR 2001 SC 2288 , in support of his plea that the original writ petitioners could not be said to be aggrieved persons within the meaning of the Administrative Tribunal's Act. 43. Assuming for the sake of the arguments that the writ petitioners were not aggrieved persons, then also nothing prevented them from filing a petition seeking the issuance of a writ of quo warranto if according to them, the appellant was ineligible to hold the post. One fails to understand this argument because if the writ petitioners had no right to challenge the appointment of the appellant in the year 1993 or 1994, how can they claim a right on the basis of the notification of the year 2003, which has been quoted hereinabove. 44. It would be pertinent here to refer to the reply of the State in the original writ petition. According to the State, the notification of 2003 was issued only with a view to count the service rendered between 1990 to 1994 for the purposes of pension, otherwise great financial loss would have been caused to the appellant. We are unable to understand how the notification of 2003 gives a fresh cause of action to the writ petitioners. According to the State, the notification of 2003 was issued only with a view to count the service rendered between 1990 to 1994 for the purposes of pension, otherwise great financial loss would have been caused to the appellant. We are unable to understand how the notification of 2003 gives a fresh cause of action to the writ petitioners. Assuming we were to quash this notification, the notifications of 1990 and 1994 would revive and at this belated stage using the notification of 2003 as a false pretext, the writ petitioners cannot be permitted to challenge the notifications of 1990 and 1994. 45. It is well settled law that what a person cannot do directly, he cannot be permitted to do indirectly. Another important factor is that the appellant, in the year 1993-94 had made his position clear to the State Government. He had, in unequivocal terms, informed the State Government that he may be repatriated to the State of Haryana and was willing to serve in the State of Himachal Pradesh only as a Deputy Director. The Government accepted his request and he was appointed as Deputy Director. Later he was appointed as Director and is functioning as Director since 1998. All the petitioners have been working under him for so many years and now they cannot be permitted to turn around and say that his initial appointment itself was bad. Therefore, the writ petition was highly belated and should have been rejected applying the principle of delay and laches. Challenge to the appointment of the appellant as Deputy Director in the year 1994. 46. Mr. Ashok Sharma, Learned Counsel for the original writ petitioners, submits that the orders passed in the year 1994 are totally illegal, false information was placed before the Cabinet, there was no approval of the Finance Department and, therefore, the notification appointing the appellant as Deputy Director was totally illegal and this illegality cannot be permitted to be perpetuated. He submits that the wrong information given to the Government was that repeated efforts were made to fill up the posts and urges that no advertisements were issued inviting applications for filling up this post. He further submits that the Public Service Commission had rejected the request of the Government to appoint the appellant as Deputy Director. He also submits that it was wrongly stated that the appellant fulfilled all the eligibility qualifications. He further submits that the Public Service Commission had rejected the request of the Government to appoint the appellant as Deputy Director. He also submits that it was wrongly stated that the appellant fulfilled all the eligibility qualifications. He states that because the approval, if any, was obtained by deliberate misstatement and concealment of relevant facts, the appellant could not have been appointed as Deputy Director. 47. In this behalf, we may make reference to the original records produced before us. It would be pertinent to mention here that first a controversy arose as to whether Dr. Gaur should be given extension of deputation after the expiry of three years on 30th April, 1993. 48. The learned Single Judge held that the period of deputation was only extended up to 31.01.1994 and thereafter the appellant was persona non grata. This finding of the learned Single Judge is totally incorrect and against the record and there is material on record to show that despite the fact that the H.P. Public Service Commission had not agreed with the Administrative Department, a note was put to the Governor explaining the reasons why it was necessary to extend the period of deputation and His Excellency, the Governor, vide order dated 12.07.1993, approved the grant of extension and the deputation period was extended up to 31.01.1994 and, thereafter, it was extended up to 31.07.1994. The second order was passed in consultation with the Public Service Commission. 49. Coming to the issue of appointment itself, we find that at that time, no rules were framed for filling up the post of Deputy Director. During this period, there were only draft rules, but there was no conscious decision of the Government that the draft rules would prevail in such matters. As far as the earlier communication dated 6th February, 1989 is concerned, the post of Deputy Director did not find mention there. The State Forensic Laboratory was being headed by a Director, namely Dr. B.R. Sharma. His term came to an end on 31.08.1993. Thereafter, there was no scientific officer to head the Laboratory. Dr. Sharma had been appointed after retirement, since the State could not find suitable candidate to fill up the post. Thereafter, a proposal was mooted that the post of Assistant Director be upgraded to that of Deputy Director and the Deputy Director could look after the laboratory. Thereafter, there was no scientific officer to head the Laboratory. Dr. Sharma had been appointed after retirement, since the State could not find suitable candidate to fill up the post. Thereafter, a proposal was mooted that the post of Assistant Director be upgraded to that of Deputy Director and the Deputy Director could look after the laboratory. The laboratory was without any Director and as per the noting, despite efforts being made, no suitable person had been found to fill up the post. It is true that the post was not advertised through the Public Service Commission, but the fact remains and there is sufficient material to show that letters were being written to various States and only a few applications were received. The post was at a higher level and, therefore, the Government was directly writing to all the FSLs and Director Generals of Police to recommend the names of suitable persons because one of the essential requirements was to have a person with wide experience who could head the laboratory. The Director General of Police was repeatedly writing to the Home Department that some officer be appointed as Deputy Director, so that a scientific officer could head the laboratory. 50. This Court cannot sit in judgment over the decisions of the Government unless they are malafide, arbitrary or totally illegal. We find that detailed notes were put up from time to time and finally on 31.12.1993, the then Additional Chief Secretary to the Government of Himachal Pradesh put up a detailed note stating that the laboratory had only one Assistant Director, i.e. the appellant, two Scientific Officers, a few Lab Attendants and other staff. The post of Director, two Deputy Directors, Three Assistant Directors, Two Scientific Officers and two Senior Scientific officers were lying vacant. This itself shows that the State was finding it difficult to find suitable persons to man these posts. Thereafter, the file was put up recommending that the post of Assistant Director, being held by the appellant, be upgraded to that of Deputy Director and the appellant be permanently absorbed as Deputy Director. The note was put up for approval of the then Hon'ble Chief Minister, who approved the same. He, however, very rightly observed that the Administrative Department may observe all the formalities before passing final order of absorption. The note was put up for approval of the then Hon'ble Chief Minister, who approved the same. He, however, very rightly observed that the Administrative Department may observe all the formalities before passing final order of absorption. Thereafter, a letter was sent to the Finance Department seeking its approval to the said proposal. The Finance Department agreed to the proposal subject to the condition that approval of the Council of Ministers be obtained. 51. Mr. Ashok Sharma has strenuously urged that approval of the Finance Department was only for upgradation of the post and not for absorption of the appellant to the said post. In our opinion, this argument is without any force. The record shows that it was a composite request made by the Home Department and the entire facts were before the Finance Department including the proposal to appoint Dr. Gaur against the said post. In any event, the Finance Department is only concerned with the financial aspects of the matter and is not concerned with the person who is appointed to a particular post. Therefore, the argument that the Finance Department had not given its approval is devoid of any merit. 52. It may, however, be pertinent to mention that the Public Service Commission did not agree to the proposal of the Administrative Department. The Public Service Commission on 18.03.1994 asked the Home Department to send the Rules. The Home Department replied that the Rules had not been framed as yet and steps were being taken to frame the Rules. On 12th April, 1994, the Secretary, Public Service Commission, wrote a letter to the Commissioner-cum Secretary (Home) asking him to send the necessary record. Thereafter, on 16th April, 1994, the Commission wrote another letter approving the proposal of the Home Department to absorb the appellant, Dr. Gaur, as Assistant Director. The Commission, however, did not agree to the ad hoc promotion of Dr. Gaur as Deputy Director in the absence of Recruitment and Promotion Rules and recommended that the proposal to fill up this post be sent only after finalizing the Rules. However, the Home Department did not agree with this proposal and on 17.05.1994, a note was put up placing on record all facts including the views of the Public Service Commission. The Secretary (Home) to the Government of Himachal Pradesh approved this note and again a note was put up on 16.07.1994 that Dr. However, the Home Department did not agree with this proposal and on 17.05.1994, a note was put up placing on record all facts including the views of the Public Service Commission. The Secretary (Home) to the Government of Himachal Pradesh approved this note and again a note was put up on 16.07.1994 that Dr. Gaur be permanently absorbed as Deputy Director since there was no Director or Deputy Director in the laboratory and the same would be headless if nobody was appointed. It was also pointed out that since the period of deputation of the appellant was expiring on 31.07.1994, the post be upgraded as early as possible. This note was approved by Hon'ble the then Chief Minister on 20.07.1994 itself. In view of the urgency of the matter, it was directed that the memorandum be got approved by the Council of Ministers by circulation. Thereafter, a memorandum for approval of this proposal by the Council of Ministers was prepared on 20th July, 1994 itself and the record reveals that the same was got approved on the same date. 53. According to Mr. Ashok Sharma, there were misstatements in this memorandum inasmuch as it was wrongly stated that the appellant fulfilled the eligibility criteria. He also submits that it was wrongly stated that approval of the Finance Department had been obtained. According to him, the Cabinet was misinformed and misled by not informing the Cabinet about the fact that the Public Service Commission had specifically disagreed with the proposal of appointing Dr. Gaur against the said post. 54. There are two cabinet memorandum placed before us and it is not clear which one was actually placed before the Cabinet. Be that as it may, the fact is that in this Cabinet memorandum, it was stated that forensic sciences are a conglomerian of several sciences and not a single science. It was also mentioned that the Government had found it difficult to fill up the posts and, therefore, it was felt that the persons, who are working, should be retained. In the memorandum, it was clearly stated that Dr. Gaur, who was an M.Sc. in Anthropology and Ph.D. in Serology and had about 19-20 years' experience, should be retained in the State. The memorandum was approved by the Council of Ministers on 20.07.1994 and, thereafter, on 1st August, 1994, the appellant was appointed. In the memorandum, it was clearly stated that Dr. Gaur, who was an M.Sc. in Anthropology and Ph.D. in Serology and had about 19-20 years' experience, should be retained in the State. The memorandum was approved by the Council of Ministers on 20.07.1994 and, thereafter, on 1st August, 1994, the appellant was appointed. The only fault we could find with the memorandum is that it was not stated that the Public Service Commission had not agreed with the proposal. 55. Mr. Ashok Sharma, Learned Counsel for the original writ petitioners, has drawn our attention to the instructions contained in the Handbook on Personnel Matters, which lays down that the H.P. Public Service Commission should be consulted before taking any action for permanent transfer/permanent absorption. There is no quarrel with this proposition. In the present case, the proposal was sent to the H.P. Public Service Commission which did not accept the same. There is no law which lays down that the State is bound to accept the opinion of the Public Service Commission. 56. Reliance has been placed by Mr. Ashok Sharma, Learned Counsel for the original writ petitioners, on the judgment of the Apex Court in A.C. Thalwal Vs. High Court of Himachal Pradesh and Others, AIR 2000 SC 2732 . In our opinion, this judgment has no applicability because that was a matter relating to judicial service and dealt with Article 234 of the Constitution of India and the observations in para 15 of the judgment are in respect of the consultation between the State and the High Court. This judgment has no relevance to the present case. 57. The writ petitioners did not challenge the appointment of Dr. Gaur as Deputy Director at that stage, as discussed above. As far as the approval of the Finance Department is concerned, we are of the considered view that the said approval was there. Since there were no Recruitment and Promotion Rules framed by that time and no clear cut executive orders have been placed before us that the State had formulated the eligibility criteria for the post of Deputy Director, the State could have appointed a person who, it felt, was eligible according to the needs of the situation, which were also required to be taken into consideration. As far as getting approval of the Personnel Department is concerned, even if that had not been obtained it would have no effect. 58. We may also add that the Public Service Commission only makes recommendations and these are not binding on the State. If we read all the notes together, it is apparent that the Administrative Department was not agreeing with the recommendations of the Public Service Commission and, thereafter, re-submitted its proposal. What decision the Council of Ministers may have taken, if this fact had been brought to its knowledge is not for us to speculate, but absence of mentioning this fact will not make the decision of the Council of Minsters illegal or invalid. Therefore, the appointment of Dr. Gaur as Deputy Director cannot be held to be void ab initio. The Cabinet decision of 25.04.2011. 59. Even if there was some illegality or irregularity in the earlier decision of the Cabinet, the same was set right and the previous mistake was ratified by the Council of Ministers on 25.04.2011. The learned Single Judge held that since this decision has not been expressed in the name of the Governor, Himachal Pradesh and furthermore, the decision had not been conveyed in terms of Article 166 of the Constitution of India as per the Rules of Business framed by the State of Himachal Pradesh, the said decision is wrong because the notifications dated 01.08.1994 and 30.07.1994 stood superseded by the notification dated 14.03.2011. The memorandum dated 14.03.2011 was an exercise in futility and the Cabinet decision inconsequential. 60. We cannot agree with the learned Single Judge at all of any of the issues decided by him. First of all, there was no challenge either to the Cabinet Memorandum or to the decision of the Cabinet. The learned Single Judge also wrongly held that no Cabinet decision based on the memorandum dated 14.03.2011 had been brought on record. 61. From the record, it is apparent that some anonymous representation was received in the office of Hon'ble the Chief Minister sometimes in December, 2008, wherein it was alleged that the appellant had been granted undue promotion and undue pensionary benefits. Hon'ble the Chief Minister directed that the points raised in the anonymous representation be dealt with. 61. From the record, it is apparent that some anonymous representation was received in the office of Hon'ble the Chief Minister sometimes in December, 2008, wherein it was alleged that the appellant had been granted undue promotion and undue pensionary benefits. Hon'ble the Chief Minister directed that the points raised in the anonymous representation be dealt with. The Principal Secretary (Home) to the Government of Himachal Pradesh put up a note that the absorption/promotion of the appellant had been done after following due process. Thereafter, Hon'ble the Chief Minister directed that the note be put up alongwith all the concerned records. Hon'ble the Chief Minister opined that the initial promotion and permanent absorption of the appellant was void ab initio but further directed that the Home Department may take necessary steps to rectify the errors pointed out. 62. On perusing the note of Hon'ble the Chief Minister, the learned Single Judge passed the following order on 22.09.2010: From the documents placed on record it is apparent that Hon'ble the 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. List on 26.10.2010. It is clarified that the matter shall not be adjourned on the next date. 63. Thereafter, it appears that the matter was reconsidered by the Government and a fresh Cabinet Memorandum was prepared and the Principal Secretary (Home) to the Government of Himachal Pradesh filed an affidavit in this regard, relevant portion of which reads as follows: 1. xx xx xx 2. xx xx xx 3. In this regard it is submitted that the main irregularities which pertain to the case of Dr. J.R. Gaur as observed by the State Government are as follows: (i) Non-consultation with Department of Personnel while ordering absorption of Dr. Gaur (even though the Council of Ministers had approved the absorption 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. J.R. Gaur as observed by the State Government are as follows: (i) Non-consultation with Department of Personnel while ordering absorption of Dr. Gaur (even though the Council of Ministers had approved the absorption 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 Council of Ministers (CMM) in 1994. (iii) Dr. Gaur's deputation in the State Government and subsequent absorption on 1-8-1994 in the post of Deputy Director even though no R&P Rules were finalized by that date. 4. The main justification for ratification of the aforesaid irregularities at this stage is that the matter is about 18 years old and the decision n the case in 1994 was taken with the approval of the Council of Ministers. Also 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. Dr. Gaur who was on deputation from Haryana Government had already requested to be relieved of his duties to return to his parent State/Cadre which would have certainly affected the nascent establishment of State Forensic Science Laboratory at that time. It is submitted that the Finance Department had also concurred to the upgradation of the Assistant Director's post to that of Deputy Director in 1994. 5. It is also submitted that the work of Dr. Gaur during his stint as Deputy Director and later as Director, State Forensic Science Laboratory was found to be of high quality and the State Forensic Science Laboratory is now well established. 6. That after seeking approval of the competent authority, matter was placed before the Council of Ministers in its meeting held on 25-4-2011, framing the following point for the Council's 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. After consideration of the matter, the aforesaid point has been approved by the Council of Ministers meeting. 64. J.R. Gaur on the post of Deputy Director in State Forensic Science Laboratory. After consideration of the matter, the aforesaid point has been approved by the Council of Ministers meeting. 64. A perusal of the aforesaid affidavit clearly shows that the Cabinet took a decision on 25.04.2011 to ratify the previous decision of the Council of Ministers on 20.07.1994. The Principal Secretary (Home) to the Government of Himachal Pradesh had clearly stated that this issue had been approved by the Council of Ministers in its meeting. This decision of the Cabinet was never challenged by the original writ petitioners and they only filed a reply to the same. Without challenging the said decision, the same could not be set at naught. Article 166 of the Constitution of India: 65. A lot of arguments have been addressed on Article 166 of the Constitution of India. It is not necessary to refer to all the decisions cited by the parties, but it would suffice to say that as per the latest judgment of the Apex Court in M.R.F. Ltd. Vs. Manohar Parrikar and Others, (2010) 4 JT 525 the Rules of Business are mandatory. The Apex Court held as follows: As observed by us earlier, these observations apply equally to the case on hand and in light of this view, we have no difficulty in holding that the Business Rules framed under the provisos of Article 166 (3) of the Constitution are mandatory and must be strictly adhered to. Any decision by the Government in breach of these Rules will be a nullity in the eye of the law. It is in this legal background that the issue raised before us have to be dealt with. 66. We are in total disagreement with the learned Single Judge that since the decision has not been communicated in terms of the Rules of Business in the name of His Excellency, the Governor, the said decision is not binding. The further action to be taken by the Government was directed to be placed on record by the earlier order of the learned Single Judge dated 22.09.2010. The memorandum was placed before the Council of Ministers after due approval of Hon'ble the Chief Minister and approved on 25.04.2011 and, thereafter, affidavit was filed in Court. The Secretary (Home) to the Government of Himachal Pradesh filed an affidavit placing the decision on record. The memorandum was placed before the Council of Ministers after due approval of Hon'ble the Chief Minister and approved on 25.04.2011 and, thereafter, affidavit was filed in Court. The Secretary (Home) to the Government of Himachal Pradesh filed an affidavit placing the decision on record. This is sufficient communication to all the concerned parties. If the State feels it necessary, such an order can even be issued in the name of Her Excellency, the Governor, at this stage also. 67. A specific noting is on the file that no further action is required to be taken in this regard and that the department may await the directions of the Hon'ble High Court in this regard. Therefore, it is obvious that the State took a conscious decision not to take any further action since the matter was pending consideration before this Court. We are appreciative of the courtesy extended by the State to this Court and we feel that the learned Single Judge should have reciprocated the same courtesy and should not have held that the decision of the Council of Ministers was inconsequential. 68. Mr. Ashok Sharma, Learned Counsel for the original writ petitioners, submits that as per Rule 10 of the Rules of Business of the Government of Himachal Pradesh, all orders and instructions made or executed by and on behalf of the Government of the State shall be expressed to be made or executed in the name of the Governor. We fail to understand how this rule is applicable to the present case. There is already an order expressed in the name of the Governor passed on 1st August, 1994 directing that the appellant be absorbed as Deputy Director. There can be no fresh order in this regard. 69. The problem was that while obtaining the earlier approval of the Council of Ministers, certain facts were not brought to its notice and, therefore, a conscious decision was taken to get the mistakes rectified and the earlier decision of the Council of Ministers ratified. Once the decision is ratified, there is no need to issue any fresh order in the name of the Governor, because the earlier order issued in the name of the Governor continues to hold the field. 70. Once the decision is ratified, there is no need to issue any fresh order in the name of the Governor, because the earlier order issued in the name of the Governor continues to hold the field. 70. Assuming for the sake of the arguments that a fresh order has to be issued, as observed by us above, the Government has stayed its hands only on account of the fact that the matter was pending in Court and the decision was taken pursuant to the directions of this Court. This by no stretch of imagination means that the decision of the Council of Ministers is inconsequential and cannot be looked into by the Court. Non-joinder of necessary parties: 71. Arguments have been expressed at length before us that since the appellant has not terminated his lien in the State of Haryana, he continues to be an employee of the State of Haryana and cannot be a permanent employee in the State of Himachal Pradesh. This is an argument of desperation and nothing else. We do not even feel it necessary to refer to the decisions referred to in this aspect. We would just like to refer to the original record in this regard. The appellant was on deputation till 31.07.1994 and he could be absorbed permanently in Himachal Pradesh Services only with the consent of three parties, i.e. the appellant, the State of Himachal Pradesh and the State of Haryana. Various letters were written by the State of Himachal Pradesh to the State of Haryana in this regard and finally the State of Haryana had written a letter dated 16.05.1994 to the State of Himachal Pradesh conveying no objection of the State of Haryana to the permanent absorption of Dr. J.R. Gaur in the Himachal Pradesh Government Service. This letter itself amounts to a letter granting clear cut permission by the State of Haryana and in no uncertain terms shows that the State of Haryana had agreed to the appellant being absorbed in Himachal Pradesh. Thereafter, the question arose as to how the appellant was to be relieved and the Haryana Government wrote that first of all the State of Himachal Pradesh should absorb the appellant and, thereafter, it would issue the relieving orders. Absorption orders were passed by the State of Himachal Pradesh on 1st August, 1994 and, thereafter, the State of Haryana also issued the relieving orders on 15.09.1994. Absorption orders were passed by the State of Himachal Pradesh on 1st August, 1994 and, thereafter, the State of Haryana also issued the relieving orders on 15.09.1994. In these circumstances, the appellant ceased to be an employee of State of Haryana, became an employee of the State of Himachal Pradesh and his lien in Haryana automatically got terminated. Merely because some formal order has not been passed would not mean that the appellant is still an employee of the State of Haryana. 72. In any event, this is a matter between the States of Himachal Pradesh and Haryana and the original writ petitioners have no locus standi in this regard. As explained above, the need for issuing orders in 2003 absorbing the appellant from the year 1990, i.e. from the date of initial induction into Himachal Pradesh arose because the State of Haryana was only willing to give the contribution for pension for the services rendered by Dr. Gaur in the State of Haryana till 1990. After 1990, the appellant had worked only in the State of Himachal Pradesh either on deputation or after absorption. Therefore, the need of absorbing him from 1990 arose with a view to ensure that he did not lose the benefit of these 3 1/2 years' services for the purposes of pension. We fail to understand how the writ petitioners can taken any advantage of this notification dated 19.05.2003, which only permits Dr. Gaur being absorbed notionally in the State of Himachal Pradesh. Legal malice or maladies: 73. Mr. Ashok Sharma, Learned Counsel for the original writ petitioners, states that this is a malice in law and submits that even in the absence of any specific allegations in this behalf, the very Cabinet memorandum itself shows that somebody was putting wrong facts before the Council of Ministers to mislead them. He, in support of his submissions, relies upon Swaran Singh Chand Vs. Punjab State Electricity Board and Others, AIR 2010 SC 151 . 74. We are unable to accept the aforesaid contention of Mr. Ashok Sharma. Merely because a fact was not mentioned does not mean that there is malice in law. This could be a pure and simple mistake. He, in support of his submissions, relies upon Swaran Singh Chand Vs. Punjab State Electricity Board and Others, AIR 2010 SC 151 . 74. We are unable to accept the aforesaid contention of Mr. Ashok Sharma. Merely because a fact was not mentioned does not mean that there is malice in law. This could be a pure and simple mistake. It could be an error of judgment, but it cannot be inferred that there is malice in law by not mentioning the fact that the Public Service Commission had not approved the proposal of the Government. We agree with the writ petitioners that this fact should have been mentioned, but non-mentioning of the same will not mean that this was purposely hidden from the Cabinet. In fact, it appears that all the facts were placed before Hon'ble the then Chief Minister, but since the Memorandum was prepared in a hurry on 20th July, 1994 and approval of the Council of Ministers obtained on the same day, this fact could not be mentioned therein. 75. Another reason for not granting any relief to the original writ petitioners is that there is not even a single shred of material on record to show that the appellant, Dr. Gaur, ever misrepresented any facts. He did not, at any time, claim to have qualifications which he did not have. All the facts were before the Government and if the State or its officials did not check up the eligibility criteria in the year 1990, why should the petitioner suffer for no fault of his. He now is at the verge of retirement, since he is to retire on 31.08.2012. In a court of equity, when the employee is not at fault, why should the employee suffer if the officials prepared a wrong memorandum for approval of the Cabinet in the year 1994? It is nobody's case that this Cabinet Memorandum was prepared by the appellant. Both the Cabinet Memorandum of the year 1994 were prepared by very senior officials, one being the Secretary (Home) to the Government of Himachal Pradesh and the other being the Additional Chief Secretary to the Government of Himachal Pradesh and both were approved by Hon'ble the Chief Minister. Both the Cabinet Memorandum of the year 1994 were prepared by very senior officials, one being the Secretary (Home) to the Government of Himachal Pradesh and the other being the Additional Chief Secretary to the Government of Himachal Pradesh and both were approved by Hon'ble the Chief Minister. We think that it would be too much to read legal malafides into such actions and even if those Memorandum were wrongly prepared, why should the appellant suffer for no fault of his. The Relief: 76. The learned Single Judge also did not take into consideration the fact that Dr. Gaur had rendered more than two decades of service in Himachal Pradesh. The appellant has placed on record material to show that persons who were junior to him had been promoted to the posts of Director in FSL Haryana long time back. The learned Single Judge quashed the absorption of the appellant in the State of Himachal Pradesh, but did not pass any further directions as to where he was to go. The appellant had been relieved by the State of Haryana, which may or may not take him back. Can an employee be left in such a state of limbo when he has not misrepresented any facts? We are of the clear cut view that this could not have been done. In fact, no relief of sending the appellant back to the State of Haryana could have been granted without making the State of Haryana a party to the petition. Despite preliminary objection being taken in this regard, the writ petitioners never sought to implead the State of Haryana as a party in this petition. In view of the above discussion, we find that there was no merit in the writ petition. For the reasons stated hereinabove, we are not at all in agreement with the judgment delivered by the learned Single Judge. We, accordingly, set aside the judgment of the learned Single Judge, dated 23.12.2011, in CWP (T) No. 10665 of 2008 and dismiss the writ petition with costs assessed at Rs. 30,000/- to be paid in equal shares by the three private respondents No. 3 to 5. As a result, the appellant shall continue to serve as Director, State Forensic Science Laboratory, Himachal Pradesh, till his attaining the age of superannuation.