JUDGEMENT AND ORDER : 1. Heard Mr. U.K. Nair, learned senior counsel, appearing for the writ petitioner. Also heard Mr. P. Nayak, learned Standing counsel, Soil Conservation Department, appearing for respondent Nos.1, 2 and 4, Mr. K.K. Parashar, learned Government Advocate, appearing for respondent No.3 as well as Mr. M. Dutta, learned counsel appearing for respondent No.5. 2. Presently, both the writ petitioner and respondent No.5 are working as Assistant Soil Conservation Officer (ASCO) under the Soil Conservation Department, Government of Assam. There is a Service Order called “Assam Soil Conservation Department (Recruitment and Promotion to the Service) Order, 1988 (for short, “Service Order”). Order 5 of the Service Order provides, amongst others, that 50% percent of the cadre strength of the post of ASCO shall be filled up by promotion in accordance with Order-8 of the Service Order. Order 6(i) of the Service Order visualizes direct recruitment to the cadre of ASCO through the Assam Public Service Commission (APSC). 3. The petitioner was selected in a selection process conducted by the APSC for appointment to the post of ASCO and, on the recommendation of the APSC dated 23.12.2009, she was placed at Serial No.1 in order of preference. By a notification dated 17.05.2010, issued by the Commissioner and Secretary to the Government of Assam, Soil Conservation Department, the petitioner was appointed to the post of ASCO and she joined her service on 18.05.2010. On 30.10.2013, five Draft Gradation Lists for the years 2008, 2009, 2010, 2011 and 2012 were published. In the said Draft Gradation Lists for the years 2010, 2011 and 2012, the name of the petitioner figured at Serial No.13 and the name of the respondent No.5 figured at Serial Nos.18, 18 and 25, respectively. On 30.06.2015, the Draft Gradation Lists in respect of ASCOs for the years 2008, 2009, 2010, 2011 and 2012 were finalized after hearing objections and, in the said final Gradation List, while the name of the respondent No.5 figured at Serial No.3, the petitioner was pushed down and relegated to Serial No.14. 4. On 30.06.2015, the Draft Gradation Lists in respect of ASCOs for the years 2008, 2009, 2010, 2011 and 2012 were finalized after hearing objections and, in the said final Gradation List, while the name of the respondent No.5 figured at Serial No.3, the petitioner was pushed down and relegated to Serial No.14. 4. The respondent No.5, along with three others, were initially appointed as ASCO, temporarily and until further order, by an order dated 08.02.1996, issued by the Deputy Secretary to the Government of Assam, Soil Conservation Department, under Regulation 3(f) of Assam Public Service Commission (Limitation of Function) Regulations, 1951 (for short, “1951 Regulations”), subject to satisfactory police verification report and subject to discharge without notice and without assigning any reason thereof. It appears from the order dated 07.04.2003 (Annexure-B to the Affidavit-in-opposition of the respondent No.5), issued by the Secretary to the Government of Assam, Soil Conservation Department, that the appointment of respondent No.5 to the said post of ASCO had been kept in abeyance by the Government vide Notification No.Soil.27/91/pt.III/315 dated 20.02.1996, until further order. Against the order dated 20.02.1996, the respondent No.5 had approached this Court by filing a writ petition, which was registered as Civil Rule No.2236/1996 and the said writ petition was disposed of by an order dated 29.04.1998. By the said notification dated 07.04.2003, respondent No.5 was allowed to report for duties as ASCO under the Lakhimpur Soil Conservation Division with effect from the date of his taking over charge and until further orders. In the notification dated 07.04.2003, it was indicated that this Court, by the aforesaid order dated 29.04.1998, passed in Civil Rule No.2236/1996, had “advised” the Government to allow continuance of the respondent No.5 in service and, therefore, he was allowed to report for duties by attaching him to the Office of the Divisional Officer, Lakhimpur Soil Conservation Division. It appears that respondent No.5 had joined on 09.04.2003. 5. Respondent No.5 had responded to an advertisement issued by the Department of Soil Conservation Department for filling up 5 (five) posts of ASCO. It transpires from a letter dated 16.12.2011 (Annexure-11 to the writ petition), issued by the Chairperson, APSC, addressed to the Principal Secretary to the Government of Assam, Soil Conservation Department, that the respondent No.5 was recommended, at Serial No.3 therein in order of merit, for appointment to the post of ASCO. It transpires from a letter dated 16.12.2011 (Annexure-11 to the writ petition), issued by the Chairperson, APSC, addressed to the Principal Secretary to the Government of Assam, Soil Conservation Department, that the respondent No.5 was recommended, at Serial No.3 therein in order of merit, for appointment to the post of ASCO. Thereafter, the Commissioner and Secretary to the Government of Assam, Soil Conservation Department, had issued a notification dated 10.01.2012, which reads as follows: “Notification No.Soil.21/2001/124: In pursuance of the recommendation of Assam Public Service Commission conveyed vide No.65/PSC/DR-58/1/2009-1010 dated 16.12.2011, the Governor of Assam is pleased to regularize the services of Sri Akhtar Hussain as Assistant Soil Conservation Officer with effect from 9th April, 2003.” 6. Having set out the broad factual matrix, it will be now time to turn to the submission of the learned counsel for the parties. 7. Mr. Nair has submitted that in the order of this Court passed on 29.04.1998 in Civil Rule No.2236/1996 there was no direction or “advise”, as reflected in the notification dated 07.04.2003, to allow continuance of the respondent No.5 in service. It is submitted by him that, on the contrary, in the said order it was very specifically stated that no mandamus had been issued and it was left open to the authorities for consideration as to whether respondent No. 5 was required to be continued in service. He has submitted that, apparently, when the original order dated 08.02.1996 appointing the respondent No. 5 under Regulation 3(f) of the 1951 Regulation was issued, no selection process whatsoever had been conducted. With reference to the pleadings, he has submitted that respondent No. 5 had participated several times in the selection process conducted by the APSC for appointment to the post of ASCO but he had not come out successful and, it is only in the year 2011 that he got a recommendation from the APSC for his appointment as ASCO. Learned senior counsel has submitted that in the aforesaid facts and circumstances, the period of service rendered by the respondent No.5 being purely a stop-gap and an ad hoc arrangement, such period cannot be counted for the purpose of granting retrospective regularization and seniority to the detriment of the petitioner. Learned senior counsel has submitted that in the aforesaid facts and circumstances, the period of service rendered by the respondent No.5 being purely a stop-gap and an ad hoc arrangement, such period cannot be counted for the purpose of granting retrospective regularization and seniority to the detriment of the petitioner. It is submitted by him that the Selection Committee of the Soil Conservation Department had met on 30.07.2015 for consideration of promotion of officers to various ranks, including to that of Divisional Soil Conservation Officer, to which the petitioner and respondent No.5 are entitled to. At the time of the said meeting of the Selection Committee, while there were 12 (twelve) vacancies in the cadre of Divisional Soil Conservation Officer, the Committee recommended 11 (eleven) officers for promotion and it was noted by the Committee that the eligibility of respondent No.5 for promotion would have to be determined with concurrence of Personnel (B) Department and, therefore, the Committee decided to keep one post of ASCO vacant. It is further submitted by him that this Court, by way of an interim order dated 16.10.2015, had directed maintenance of status quo with regard to promotion from the post of ASCO to the post of Divisional Soil Conservation Officer. Mr. Nair has placed reliance on the judgment of a Division Bench of this Court rendered in the case of Nabin Chandra Bordoloi vs. State of Assam and Ors., reported in 2003 (2) GLT 147. 8. Mr. Dutta, learned counsel for respondent No.5, by placing reliance on the judgement of the Supreme Court rendered in the case of Direct Recruit Class II Engineering Officers’ Association vs. State of Maharashtra, reported in (1990) 2 SCC 715 , has submitted that the respondent No.5 was appointed under Regulation 3(f) of the 1951 Regulation by following a due process of law and even if there are some irregularities in such appointment, as the respondent No.5 was continuing in service, his service under Regulation 3(f) must be reckoned in terms of Conclusion (B) of Direct Recruit Class II Engineering Officers’ Association (supra) and, accordingly, a conscious decision was taken by the respondent authorities to regularize the service of respondent No.5 with effect from 09.04.2003 and, based on the same, the final Gradation List was prepared making suitable corrections in the Draft Gradation Lists. Mr. Mr. Dutta has further submitted that the impugned order of regularization of respondent No.5 was issued on 10.01.2012 and the writ petition was filed belatedly in the year 2015 and, thus, the writ petition suffers from delay and laches. Accordingly, he submits that no case is made out for interference by this Court in exercise of powers under Article 226 of the Constitution of India. 9. Mr. Nayak, learned counsel appearing for respondent Nos.1, 2 and 4 adopts the submission of Mr. Dutta and contends that as the respondent No.5 continued uninterruptedly from the year 2003, the benefit of his past service was given to him when he, eventually, secured regularization through the APSC. Though, initially, in the Draft Gradation Lists his name was shown below the petitioner, consequent upon the regularization order having been effected with effect from 09.04.2003, the respondent No.5 was placed at Serial No.3 and, in the process, the petitioner was displaced from her position at Serial No.13 to 14 in the final Gradation List dated 30.06.2015. 10. I have considered the submissions of the learned counsel for the parties and have perused the materials on record. 11. The order dated 08.02.1996, by which the respondent No.5 was appointed under Regulation 3(f) of the 1951 Regulation, does not reflect that prior to such appointment any selection process was conducted. Though the respondent No.5 at paragraph 27 of his affidavit-in-opposition indicated that his appointment under Regulation 3(f) was after following due process, no specific averments are made with regard to any particular process based on which he was selected. The statement that the respondent No.5 was selected following due procedure and process is a conclusion, but, in support of the same, no averments are made with regard to the factual foundation based on which such assertion was made. Ex facie, there is distortion of the order of the High Court passed on 29.04.1998 in the order dated 07.04.2003 issued by the Secretary to the Government of Assam, Soil Conservation Department. Nowhere in the order dated 29.04.1998, the High Court had “advised” the Government to allow continuance of respondent No.5 and by distorting the order of the High Court, the requirement of obtaining approval of the State Level Empowered Committee (SLEC) was also bypassed. Nowhere in the order dated 29.04.1998, the High Court had “advised” the Government to allow continuance of respondent No.5 and by distorting the order of the High Court, the requirement of obtaining approval of the State Level Empowered Committee (SLEC) was also bypassed. In the last paragraph of the order dated 07.04.2003, it is indicated that in view of the High Court’s order passed in favour of respondent No. 5, the approval of the SLEC is obviated. It is also worth noticing that such an order was passed after five years of passing of the order by the High Court. 12. Regulation 3(f) provides that it shall not be necessary for the Commission to be consulted with in matters relating to method of recruitment to civil services and post or the suitability of candidates for such appointments, when an appointment is to be made by direct recruitment to a temporary post created in a service, if it is necessary in the public interest that the appointment should be made immediately and reference to the Commission would cause undue delay; provided that if the post has been sanctioned for, or is likely to last for more than four months, the Commission shall, as soon as possible, be consulted in all matters mentioned in Article 320(3) of the Constitution. 13. If we revert back to the original order of appointment dated 08.02.1996, it will be seen that while forwarding the copy of the said order to APSC, it was indicated that the provisions of Regulation 3(f) of the 1951 Regulation was resorted to in view of urgent exigencies of the department. 14. Categorical assertion made by the petitioner in paragraph 9 of the writ application that the respondent No.5 could not clear the selection process conducted by the APSC in spite of attempting and appearing on several occasions, has not even been traversed by respondent No.5, which would go to show that the assertion made by the petitioner is admitted. That Respondent No.5 was allowed to continue in service under Regulation 3(f) despite not coming out successful in the recruitment process, also raises doubt as to whether all posts available in the cadre of ASCO for filling up by way of direct recruitment had been advertised. 15. That Respondent No.5 was allowed to continue in service under Regulation 3(f) despite not coming out successful in the recruitment process, also raises doubt as to whether all posts available in the cadre of ASCO for filling up by way of direct recruitment had been advertised. 15. In the Draft Gradation Lists for the years 2010, 2011 and 2012, in the “Remarks” column, it was mentioned that the respondent No.5 was appointed under Regulation 3(f) and his service was yet to be regularized by the APSC. This was obvious because till then the respondent No.5 had not come out successful in any of the recruitment processes conducted by the APSC. In the Gradation List for the year 2012, there was no remark against respondent No.5 in the “Remarks” column. 16. In the tentative Gradation List for the year 2012, the name of the petitioner was reflected at Serial No.13 though the order of regularization was issued on 10.01.2012. The petitioner has pleaded at paragraph 10 that the issuance of the order dated 07.04.2003 was not to his knowledge. Though in paragraph 28 of the affidavit-in-opposition of respondent No.5 a plea is taken that the order dated 10.01.2012 was challenged after three years, nowhere in the affidavit the respondent No.5 had denied and contested the assertion of the petitioner that he had no knowledge of the said order. The respondent No.1, in his affidavit-in-opposition, had admitted the said statement made by the petitioner to be true. The copy of the order dated 10.01.2012 was not circulated in the office though a copy of the same was sent for publication in the Gazette. In such circumstances, the plea taken by the petitioner cannot be brushed aside. It is also to be noted that when the final Gradation List was published on 30.06.2015 altering the seniority position of the petitioner from Serial No.13 to 14 and bringing up respondent No.5 from Serial No.25 to 3, as shown in the Draft Gradation List for 2012, the petitioner had promptly filed the writ petition. 17. The High Court may refuse to exercise its extra-ordinary power under Article 226 of the Constitution of India where the petitioner is guilty of laches and undue delay, which has not been explained. The question of laches and delay has to be considered according to the circumstances of the case. 17. The High Court may refuse to exercise its extra-ordinary power under Article 226 of the Constitution of India where the petitioner is guilty of laches and undue delay, which has not been explained. The question of laches and delay has to be considered according to the circumstances of the case. If in the interregnum, third party rights have been created or a settled position has emerged, a writ Court may decline to invoke its discretionary jurisdiction under Article 226 of the Constitution of India. In the instant case, the petitioner had offered satisfactory and plausible explanation and, besides, the petitioner and the respondent No.5 still continue to be in the cadre of ASCO. No third party right is involved and the case presents an inter-se seniority dispute in between the petitioner and the respondent No.5 consequent upon regularization of service of respondent No.5 with retrospective effect from 09.04.2003. In the facts of the case, I am of the considered opinion that the submission of Mr. Dutta that the writ petition is to be dismissed on the ground of delay and laches is without any merit. 18. In order to appreciate the contention of Mr. Dutta that Conclusion (B) of Direct Recruit Class II Engineering Officers’ Association (supra) will be applicable to the case of respondent No.5, it will be appropriate to extract herein below Conclusions (A) and (B) as mentioned in Direct Recruit Class II Engineering Officers’ Association (supra), for a better understanding: “(A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. (B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the rules, the period of officiating service will be counted.” 19. (B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the rules, the period of officiating service will be counted.” 19. It is clear from Conclusion (A) that to enable seniority to be counted from the date of initial appointment, and not according to the date of confirmation, the incumbent of the post has to be initially appointed “according to rules”. The corollary set out in Conclusion (A) recites that where the initial appointment is only ad hoc, and not according to rules, and made as a stop-gap arrangement, the officiation in such posts cannot be taken into account for considering the seniority. Thus, the corollary in Conclusion (A) expressly excludes the category of cases where the initial appointment is only ad hoc and not according to rules, being made only as a stop-gap arrangement. Conclusion (B) provides that the period of officiating service will be counted if the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularization of his service. There can be no doubt that both the Conclusions have to be read harmoniously. 20. At this stage, it will be appropriate to refer to the decision rendered by the Supreme Court in the case of State of W.B. and Others vs. Aghore Nath Dey and Others, reported in (1993) 2 SCC 371, where Conclusions (A) and (B), as laid down in Direct Recruit Class II Engineering Officers’ Association (supra), were clarified. The writ petitioners therein were appointed on ad hoc basis initially for a period of six months in between 1972 to 1978 and their ad hoc appointments were extended up to February 26, 1980. Several opportunities were given to them to appear before the Public Service Commission but they declined to appear. Subsequently, the Government regularized their services with effect from 26.02.1980 without the ad hoc appointee being selected by the Public Service Commission and they were given benefit of seniority from that date. Several opportunities were given to them to appear before the Public Service Commission but they declined to appear. Subsequently, the Government regularized their services with effect from 26.02.1980 without the ad hoc appointee being selected by the Public Service Commission and they were given benefit of seniority from that date. Submission was advanced before the Supreme Court that their initial ad hoc appointment being in the nature of regular employment made during an emergency after selection by a committee consisting of five Chief Engineers, they are entitled to count their entire service including the ad hoc period for the purpose of their seniority and had contended that their cases fell squarely within the ambit of Conclusion (B) of Direct Recruit Class II Engineering Officers’ Association (supra). The contention was rejected by the Supreme Court. 21. In Aghore Nath Dey (supra), the Supreme Court had laid down that Conclusion (B) cannot include, within its ambit, those cases which are expressly covered by the corollary in Conclusion (A), since the two Conclusions cannot be read in conflict with each other. It was held that Conclusion (B) was added to cover a different kind of situation, wherein the appointments are otherwise regular, except for the deficiency of certain procedural requirements laid down by the rules as would be clear from the opening words of the conclusion (B), namely, 'if the initial appointment is not made by following the procedure laid down by the rules' and the later expression 'till the regularisation of his service in accordance with the rules'. It was observed that Conclusion (B) must be so read to reconcile with conclusion (A), to cover the cases where the initial appointment is made against an existing vacancy, not limited to a fixed period of time or purpose by the appointment order itself, and is made subject to the deficiency in the procedural requirements prescribed by the rules for adjudging suitability of the appointee for the post being cured at the time of regularisation, the appointee being eligible and qualified in every manner for a regular appointment on the date of initial appointment in such cases. Decision about the nature of the appointment, for determining whether it falls in this category, has to be made on the basis of the terms of the initial appointment itself and the provisions in the rules. 22. Decision about the nature of the appointment, for determining whether it falls in this category, has to be made on the basis of the terms of the initial appointment itself and the provisions in the rules. 22. What is the nature of the appointment made under Regulation 3(f) of the 1951 Regulation had fallen for consideration before Division Bench of this Court in the cases of Hemanta Kumar Pegu and Ors. vs. State of Assam and Ors., reported in 1988 (1) GLJ 19 383, Pranjit Kumar Das vs. State of Assam and Ors., reported in (1995) 1 GLR 229 and Nabin Chandra Bordoloi (supra). In Nabin Chandra Bordoloi (supra), the ratio laid down in Hemanta Kumar Pegu (supra) and Pranjit Kumar Das (supra) was reiterated. In Hemanta Kumar Pegu (supra), it was held by this Court that the pre-conditions prescribed for appointment under Regulation 3(f) of the 1951 Regulation are that the post is a temporary post created in a service; it has been sanctioned for or is likely to last for less than four months. In these cases, consultation of the Public Service Commission has been rendered unnecessary. However, if the post is not a temporary post created in a service, or it is a temporary post but has been sanctioned for or is likely to last for more than four months, the Commission shall, as soon as possible, be consulted in all matters mentioned in Article 320(3) of the Constitution. 23. It was held in Nabin Chandra Bordoloi (supra) that Regulation 3(f) of the 1951 Regulation does not provide a source of power for appointment, but it only provides a mode of appointment and that regularize does not connote permanence. Regulation 3(f) provides for a mode of appointment on temporary basis for four months because of the fact that regular appointment cannot be made within the short span of time. In the aforesaid case, the appointees under Regulation 3(f) joined duty on 22.05.1984 and were regularized on 20.12.1989 with retrospective effect from 16.01.1987. In no uncertain terms this Court held that the appointments being stop-gap arrangement on ad hoc basis, their service on ad hoc basis could not be counted for the purpose of seniority. In the aforesaid case, the appointees under Regulation 3(f) joined duty on 22.05.1984 and were regularized on 20.12.1989 with retrospective effect from 16.01.1987. In no uncertain terms this Court held that the appointments being stop-gap arrangement on ad hoc basis, their service on ad hoc basis could not be counted for the purpose of seniority. It was further held that the service rendered by any incumbent under an appointment made in exercise of power under Regulation 3(f) of the 1951 Regulation cannot be a ground for regularization of the incumbent on that basis. 24. Even though in the appointment order of the respondent No.5 the period for which he was appointed was not prescribed, fact remains that it was made under Regulation 3(f) of the 1951 Regulation. The nature of appointment under the 3(f) Regulation is ad hoc and a stop-gap arrangement and the Service Order provides for direct recruitment to the post ASCO through the APSC. Therefore, the case of the respondent No.5 is squarely covered by corollary to Conclusion (A) of Direct Recruit Class II Engineering Officers’ Association (supra). Even though the respondent No. 5 continued as ad hoc appointee for some length of time, such period of service cannot be taken into consideration for the purpose of regularization with retrospective effect. However, the State respondents have taken into consideration this period of service and had granted retrospective regularization of service of respondent No. 5 with effect from 09.04.2003 by the impugned order dated 10.01.2012 despite the fact that he obtained recommendation from APSC in the year 2011 after failing to get selected on a number of previous occasions. 25. In view of the above discussions, the writ petition is allowed. The order of regularization of the respondent No.5 with effect from 09.04.2003 is set aside and the respondent authorities are directed to treat the respondent No. 5 to have been appointed as ASCO regularly with effect from 10.01.2012. State respondents are directed to appropriately correct the final Gradation List dated 30.06.2015 as per respondent No.5’s merit position in the recommendation of the APSC dated 16.12.2011. 26. State respondents are directed to appropriately correct the final Gradation List dated 30.06.2015 as per respondent No.5’s merit position in the recommendation of the APSC dated 16.12.2011. 26. As in the meeting of the Selection Committee held on 30.07.2015, one post of ASCO was not filled up, the respondents are, now, directed to hold a Review Departmental Promotion Committee (DPC) meeting for the purpose of consideration of promotion to the post of Divisional Soil Conservation Officer in respect of the post that was under consideration in the meeting held on 30.07.2015. The Review DPC will be convened within a period of two months from the date of receipt of a certified copy of this order by the respondent No.1. 27. Needless to say, the interim order dated 16.10.2015, directing maintenance of status quo, stands vacated. 28. Writ petition stands allowed in terms of the above. No cost.