ORDER : Alok Aradhe, J. 1. In view of commonality of issues involved in both the writ petitions, they were heard analogously and are being decided by this common order. The petitioners in SWP No. 3152/2015 seek writ of certiorari for quashment of communication dated 13.09.2012 addressed by J&K Public Service Commission to Secretary to Government, Consumer Affairs and Public Distribution Department insofar as it pertains to recommendations of DPC/PSC for retrospective regularization of In-charge Promotion of respondents 3 to 8 as Assistant Controllers in violation of J&K Legal Metrology (Gazetted) Services Recruitment Rules, 2005 (hereinafter referred to as Rules, 2005). The petitioners also seek a writ of certiorari for quashment of order dated 28.09.2012 insofar as it pertains to retrospective promotion of respondents 3 to 8 as Assistant Controllers under the J&K Legal Metrology (Gazetted) Services Recruitment Rules, 2005 inasmuch as the aforesaid promotions have been made beyond 50 per cent of the quota reserved for promotion of Inspectors, Legal Metrology to the posts of Assistant Controllers, Legal Metrology. The petitioners also seek quashment of the tentative seniority list of Assistant Controllers insofar as the same includes the name of respondents 3 to 8 as well as writ of mandamus directing the respondent No. 1 to consider the appointment of the petitioners as Assistant Controllers w.e.f. 24.10.2011 instead of 20.03.2012. The petitioners in SWP No. 1347/2016 inter alia seek quashment of order dated 05.02.2016 by which final seniority list of Assistant Controllers (State Cadre) of Legal Metrology Department has been issued to the extent it places the name of respondents 3 to 8 over and above the name of the petitioners. The petitioners also seek writ of prohibition restraining the respondent No. 1 from operating the final seniority list of Assistant Controllers issued vide Government order No. 15-CA & PD of 2016 dated 05.02.2016 for either stop gap arrangement or substantive promotions to the post of Deputy Controllers Legal Metrology. In order to appreciate the petitioners' grievance, few facts need mention which are stated infra. 2. That since the inception of Legal Metrology Department, there were no gazetted rules framed governing the mode and manner of recruitment of various gazetted posts in the department. However, J & K Weights and Measures (Subordinate) Service Recruitment Rules, 2001 were enacted which governed the mode and manner of the recruitment to the non-gazetted posts. 2. That since the inception of Legal Metrology Department, there were no gazetted rules framed governing the mode and manner of recruitment of various gazetted posts in the department. However, J & K Weights and Measures (Subordinate) Service Recruitment Rules, 2001 were enacted which governed the mode and manner of the recruitment to the non-gazetted posts. In the absence of Gazetted Recruitment Rules, the post of Assistant Controller, Legal Metrology which is a gazetted post was being filled up 100 per cent by promotion from and amongst Inspector, Weights and Measures which was a non gazetted post under the J&K Weights and Measures (Subordinate) Services Recruitment Rules, 2001. The 2005 Rules were enacted vide SRO 192 of 2005 dated 12.07.2005. Under Schedule-I appended to the Gazetted Recruitment Rules, 2005, the total sanctioned cadre of the posts of Assistant Controllers, Legal Metrology were 17 and under Schedule-II, the posts of Assistant Controllers, Legal Metrology are to be filled up 50 per cent by direct recruitment and 50 per cent by promotions from Inspectors, Weights and Measures, Legal Metrology who are members of J&K Weights and Measures (Subordinate) Services Recruitment Rules, 2001. The 2001 Rules were repealed with the enactment of J&K Legal Metrology (Subordinate) Services Recruitment Rules, 2005. 3. Before enactment of 2005 Rules, six Inspectors, Legal Metrology who were working as Incharge Assistant Controllers in their own pay and grade were placed in the pay scale of Rs. 7500-12000 subject to clearance from DPC/PSC and in addition one more Inspector, Legal Metrology was promoted as Incharge, Assistant Controller in the pay scale of Rs. 7500-12000 subject to clearance from the DPC/PSC by Government Order dated 11.04.2005. After coming into force of the 2005 Rules, the State Government vide Order dated 10.10.2005 framed initial constitution of J&K Legal Metrology (Gazetted) Services. The State Government under the rules was required to maintain quota of direct recruits and promotees, i.e. 50 per cent each. It is the case of the petitioners that all the 17 sanctioned posts of Assistant Controllers were to be filled up from promotees and seven officers were made Assistant Controllers vide order dated 11.04.2005, who were included in the initial constitution but were not holding the posts of Assistant Controllers substantively in the sanctioned sale of pay and were not yet cleared by DPC/PSC. 4. 4. On 03.02.2009, final seniority list of Assistant Controllers was issued which included the names of 8 illegally included officers in the initial constitution. Thereafter, Vide Order No. 113-CA&PD of 2009 dated 21.12.2009, one more Inspector was made Incharge, Assistant Controller was posted against the post of Assistant Controller. Thus, the total 18 promotees were occupying the posts of Assistant Controllers. A meeting of the Departmental Promotion Committee was to be convened and, therefore, eight more posts of Assistant Controllers were created in Feb, 2010 and two posts had otherwise fallen vacant and, therefore, for the first time, the agenda note was prepared for filling up five posts under the direct recruitment out of ten posts, which were lying vacant. On 26.02.2011, one more Inspector was placed as In-charge Assistant Controllers, Legal Metrology. On 01.03.2011, five posts under the direct recruitment quota were referred to the PSC. Vide Government Order No. 30-CA & PD of 2011, seven posts of Deputy Controllers were created by the corresponding reduction of seven posts of Assistant Controllers and as on 08.04.2011, the sanctioned strength of Assistant Controllers was brought down from 26 to 19 and out of 24 Assistant Controllers who were occupying the post from promotional quota, seven were made In-charge Deputy Controllers, therefore, remaining 12 posts were already occupied by the promotees on 08.04.2011 and private respondents were also made In-charge Assistant Controllers, Legal Metrology from the post of Inspectors. It is the case of the petitioners that out of 19 sanctioned posts, 17 posts were occupied by the promotees including respondents 3, 4, 6, 7 and 8. Respondent No. 8 was made Incharge, Assistant Controller in clear and categorical violation of J&K Legal Metrology Services Recruitment Rules and Rule 25(2) of J&K Civil Services (Control, Classification & Appeal) Rules, 1956 as he had not passed the prescribed test. 5. On 19.04.2011, applications for recruitment of five posts of Assistant Controllers under the direct recruitment quota were invited by the PSC. The aforesaid advertisement was challenged in SWP No. 1420/2011 at the instance of private respondents and a bench of this Court by way of interim order stayed the finalization of selection process. The petitioners were selected against the direct recruitment vacancies on 24.10.2011, however, their orders of appointment could not be issued in view of interim order passed in SWP No. 1420/2011. The petitioners were selected against the direct recruitment vacancies on 24.10.2011, however, their orders of appointment could not be issued in view of interim order passed in SWP No. 1420/2011. On 01.12.2011, respondent No. 5 was made In-charge Assistant Controller. On 15.03.2012, SWP No. 1420/2011 was dismissed and eventually petitioners were appointed vide order dated 20.03.2012 on the posts of Assistant Controllers under the direct recruitment quota. On 13.09.2012, the Public Service Commission issued the impugned communication by which it recommended the cases of private respondents for retrospective regularization as Assistant Controllers. Thereafter by order dated 28.09.2012, the Incharge promotions of private respondents were retrospectively recognized as Assistant Controllers. On 20.10.2015, the tentative seniority list of Assistant Controllers was issued in which private respondents figured over and above the petitioners. The petitioners thereupon filed objection to the tentative seniority list opposing the inclusion of private respondents on the ground that initial Incharge promotion of private respondents as Assistant Controllers in the year 2011 and regularization thereof was illegal and against the 2005 Rules inasmuch as out of 19 sanctioned posts of Assistant Controllers as on date, private respondents were promoted as Incharge Controllers, 14 posts stood already occupied by the promotees, therefore, there was no vacancy of Assistant Controllers either for in-charge promotion of private respondents or for their retrospective regularization. In SWP No. 1352/2015 filed by the petitioners, ad interim order dated 08.12.2015 was passed directing the maintenance of status quo. However, despite order of status quo passed by a bench of this Court, by order dated 05.02.2016, the seniority of private respondents was finalized which is under challenge in SWP No. 1347/2016. 6. Learned counsel for the petitioners submitted that the initial constitution of services was not in accordance with the recruitment rules and the promotions were made on in-charge bases in excess of the quota and, therefore, the same could not have been regularized. It is further submitted that when retrospective effect was given to the promotion of private respondents and they were made senior to the petitioners, the petitioners were already in service, however, neither any notice was given to them nor their objections against the tentative seniority list were considered. It is further submitted that when retrospective effect was given to the promotion of private respondents and they were made senior to the petitioners, the petitioners were already in service, however, neither any notice was given to them nor their objections against the tentative seniority list were considered. It is further submitted that promotion with retrospective effect can be given subject to three conditions namely, eligibility, a candidate must have incharge from an anterior date and the vacancies must exist in the promotional quota. In the instant case, there were no vacancies in the promotional quota. In support of his submissions, learned counsel for the petitioners has referred to decision of the Supreme Court in the case of Surya Prakash Gupta and Ors. v. State of J&K, 2000 (7) SCC 561 and order dated 15.10.2010 passed by a bench of this court in SWP No. 1087/2009. 7. On the other hand, Mrs. Seema Shekhar, Sr. AAG for respondent No. 1 submitted that the order by which private respondents were made in-charge Assistant Controllers, was issued in the year 2011 whereas the petitioners have joined the services on 20.03.2012. It is further submitted that the petitioners cannot seek any relief in respect of the period for which they were not in service. It is also submitted that after commencement of the 2005 Rules, the initial service was constituted on 10.10.2005 which is in accordance with rules inasmuch as eight posts of Assistant Controllers, Legal Metrology were occupied by promotees whereas nine posts were occupied by direct recruits. It is also pointed out that initial recruitment of service is not under challenge under the aforesaid writ petition. It is also submitted that in the subsequent petition, except challenge the final seniority list notified vide Government Order dated 05.02.2016, the petitioners have raised the issues which are substantially involved in SWP No. 3152/2015. It is also urged that initially 17 posts had been substantially filled up out of total sanctioned strength at the time of initial constitution of service and thereafter as and when the vacancies have become available due to newly created posts and on retirement of incumbents, the posts of Assistant Controllers, Legal Metrology were utilized strictly by respondent No. 1 in terms of 2005 Rules and quota prescribed under the Rules has also been maintained. In respect of her submissions, learned Sr. In respect of her submissions, learned Sr. AAG has referred to the decision of the Supreme Court in the case of Sunaina Sharma and ors. V. State of J&K and ors passed in Civil Appeal Nos. 4594-4595 of 2017 dated 26.10.2017. Learned counsel for private respondents have supported the stand taken by Sr. AAG and have submitted that vacancies which have occurred prior to enactment of the Rules would be governed by the old Rules and not by the new Rules. In support of aforesaid submissions, reference has been made to the decision of the Supreme Court in the case of V.Y. Rangaiah: State of Andhra Pradesh v. J. Sreenivasa Rao: S. Sreenivasa Rao, AIR 1983 SC 852 . 8. I have considered the submissions made by learned counsel for the parties and have perused the record. It is well settled in law that inter-se seniority may not be a fundamental right but is a civil right. See: State of U.P. Vs. Dinkar Sinha, (2007) 10 SCC 548 . It is equally well settled legal proposition, that respective rights of seniority of the parties are required to be determined in their presence. See: State of Uttaranchal v. Mandan Mohan Joshi, (2008) 6 SCC 797 . Admittedly in SWP No. 3152/2015, the petitioners had challenged the tentative seniority list which was published on 20.10.2015. The petitioners had raised an objection to the tentative seniority list and had filed writ petition namely SWP No. 3152/2015 in which an ad interim order of status quo was passed on 08.12.2015. However, the official respondents did not decide the objection preferred by the petitioners with regard to tentative seniority list of Assistant Controllers, Legal Metrology and in violation of the ad interim order passed by a bench of this court on 08.12.2015, issued final seniority list on 05.03.2016. Therefore, no sanctity can be attached to the final seniority list for two reasons. Firstly, that the same has been passed in violation of ad interim order passed by this Court on 08.12.2015 and secondly that before preparation of the same, objections preferred by the petitioners have not been decided. 9. Besides that, it is pertinent to mention here that the petitioners have taken a specific ground in SWP No. 1347/2016, namely, Ground Nos. Firstly, that the same has been passed in violation of ad interim order passed by this Court on 08.12.2015 and secondly that before preparation of the same, objections preferred by the petitioners have not been decided. 9. Besides that, it is pertinent to mention here that the petitioners have taken a specific ground in SWP No. 1347/2016, namely, Ground Nos. (b) and (d) to the fact that the objections preferred by them have not been considered before preparation of the final seniority list and the final seniority list has been prepared in violation of the ad interim order dated 08.12.2015. However, in the reply filed on behalf of the official respondents, no specific reply has been given to the aforesaid grounds taken by the petitioners. 10. It has been the case of the petitioners that promotion to private respondents can be given with retrospective effect subject to their eligibility, and the fact that they have worked on the post on In-charge basis from an anterior date as well as fact that the vacancies must exist in the promotional quota. It is the case of the petitioners that at the time when the seniority was sought to be given to the private respondents, there were no vacancies in the promotional quota. The aforesaid aspect of the matter is required to be examined by the official respondents. 11. For the reasons assigned in the preceding paragraphs, it is not necessary for this Court to examine several other contentions raised by the parties. The impugned order dated 05.02.2016 by which final seniority list of Assistant Controllers, (State Cadre) of Legal Metrology Department was issued is hereby quashed. The order dated 28.09.2012 insofar as it pertains to retrospective promotion of respondents 3 to 8 as Assistant Controllers, Legal Metrology is also hereby quashed. The competent authority is directed to decide the objections preferred by the petitioners with regard to tentative seniority list by a speaking order after affording an opportunity of hearing to them within a period of two weeks from today and thereafter to issue the final seniority list depending upon the decision taken by the competent authority, the decision shall also be taken with regard to grant of benefit of retrospective promotion to respondents 3 to 8. With the aforesaid directions, both the petitions stand disposed of, along with connected MPs.