JUDGMENT Songkhupchung Serto, J. 1. This is an application under Article 226 of the Constitution of India praying for a writ in the nature of a certiorari and or Mandamus and or any other appropriate writ or order or direction of the like nature as may be deem fit by this Court in the facts and circumstances of the case. The brief facts of the case which lead to the filing of this writ application are as follows; The petitioner was initially appointed as Assistant Soil Conversation Officer (Engineering) in the department of Soil & Water Conversation through Nagaland Public Service Commission (in short, NPSC) vide Notification No. SOIL-19/36, dated 21.2.1989, issued by Under Secretary to the Government of Nagaland; Soil & Water Conversation department, wherein the petitioner's name figured at Sl. No. 4 of the Notification. In that Notification, the petitioner's name was given as Shri. Tongchinmang Tungnung. However, pursuant to his application asking for change of his name to his adopted named Razouvolie Kelio, which was supported by an affidavit submitted to the department the department, issued a Notification No. SOIL-107/88/G, dated not illegible, in December, 1991, stating that his name shall henceforth be Razouvolie Kelio for all purpose. While being situated as such, P&AR Department (O & M CELL), issued a Notification No. AR/O&M-5/90, dated 04.11.1997, ordering amalgamation/encadrement of the post of Assistant Soil Conservation Officer (Engineering) in Soil & Water Conservation department held by the petitioner, along with the petitioner himself with the cadre of Engineering wing in the Irrigation & Flood control department with effect from the date of amalgamation. Following the issuance of the above stated Notification, department of Irrigation & Flood Control, issued a Notification No. IRR/EST/53/93, dated 13.05.1997, giving effect to the same. Thereafter, the department of Soil & water Conservation also issued a Notification No. SOIL-9/87/G (pt), dated 6.01.1998, on the same line as issued by the department of Irrigation & Flood Control but adding a sentence which stated that the period of service rendered in the Soil & Water Conservation department i.e. from the date of his regular appointment in the service, dated 1.2.1989 to 03.11.1997, will also be deemed to have been counted in the Irrigation & Flood Control department. The above stated notification which were annexed as Annexure-5, Annexure-6 and Annexure-7 to the writ petition are reproduced here below one after the other;- "Government of Nagaland Personnel & Administrative Reforms Department (O&MCELL) Notification No. AR. O&M-5/90 Dated Kohima, the 4th Nov' 97. In continuation of this Department's Notification No. Ar-13/6/08 of 6.12.88 & 25.5.89, the Governor of Nagaland is pleased to order amalgamation/encadrement of the post of Assistant Soil Conservation Officer (Engineering) under Soil & Water Conservation Department held by Shri. Razouvolie Kelio, B.Tech (Agricultural Engineering) to that of Irrigation & Flood control Department along with the incumbent to his discipline with immediate effect. Consequent upon the amalgamation/encadrement as ordered above, the Governor of Nagaland is also pleased to order that the post of Assistant Soil Conservation Officer (Engineering) in Soil & Water Conservation Department shall form a combined cadre of Irrigation & Flood Control with effect from the date of amalgamation. The Governor is further pleased to order that the concerned incumbent holding the post which have now been encadred shall be deemed to have been duly appointed to the post in the Irrigation & Flood Control Cadre. Placement of Officer and staff, fixation of their/his inter-se-seniority, procedure for execution of work etc. will be as recommended by the Expert Committee and as notified by the W & H Department vide their notification No. WH/ESTT/17/88 of 18.1.89 & 17.10.89 respectively. Sd/- Anil Kumar Commissioner & Secretary to the Government of Nagaland". "Government of Nagaland Irrigation & Flood Control Department Notification Dated Kohima, the 13th Nov'97. No. IRR/EST/53/93. In pursuance to personnel & Administrative Reforms Department's Notification No. AR/O&M/5/90 dated 4.11.97, the Governor of Nagaland is pleased to order amalgamation/encadrement of the post of Assistant Soil Conservation Officer (Engineering) under Soil & Water Conservation Department being held by Shri. Razouvolie Kelio, B. Tech (Agricultural Engineering) to that of Irrigation & Flood Control Department alongwith him to his discipline with effect from 4.11.97 subject to the following:- 1. The date of his regular appointment in the service at a particular level in Soil & Water Conservation Department will be taken into account to determine as are applicable in the State vide Work & Housing Department Memorandum No. WH/Est/17/88 of 17.10.89. 2. The date of his regular appointment in the service at a particular level in Soil & Water Conservation Department will be taken into account to determine as are applicable in the State vide Work & Housing Department Memorandum No. WH/Est/17/88 of 17.10.89. 2. Consequent upon the amalgamation/encadrement as ordered above, the Governor of Nagaland is also pleased to order that the post of Assistant Soil Conservation Officer (Engineering) in the Soil & Water Conservation Department shall form a combined cadre of Irrigation & Flood Control Department with effect from the date of amalgamation. The Governor is further pleased to order that the concerned incumbent holding the post which have now been encadred shall be deemed to have been duly appointed to the post in the Irrigation & Flood Control Cadre. 3. Fixation of his Inter-se-seniority, procedure for execution of works etc. will be as recommended by the Expert Committee and as per Memorandum issued by the Personnel & Administrative Reforms Department No. AR-13/6/88 of 25.5.89:- (a) His Cadre management and Technical supervision will be under Irrigation & Flood Control; and (b) Budget and administrative control will the Soil & Water Conservation Department as before. Sd- A.M. Gokhale Chief Secretary to the Govt. of Nagaland". "Government of Nagaland Soil and Water Conservation Department Notification Dated, Kohima, the 6th Jan' 98. No. Soil-9/87/G(pt): in view of personnel and Administrative reforms Department Notification No. IIR/EST-53/93 Dated 13.11.97, the Governor of Nagaland is pleased to order amalgamation/encadrement of the post of Assistant Soil Conservation Officer (Engineering) under Soil 7 Water Conservation Department being held by Shri. Razouvolie Kelio, B.Tech. (Agricultural Engineering) to that of irrigation and Flood Control Department along with him to his discipline with effect from 4.11.97 subject to the following:- (1) The date of his regular appointment in the service at a particular level in Soil & Water Conservation Department will be taken into account to determine the inter-se-seniority as per general principles of seniority as are applicable in the State vide Works & Housing Department Memorandum NO. WH/ESTT/17/88 of 17.10.89. (2) Consequent upon the amalgamation/encadrement as ordered above the Governor of Nagaland is also pleased to order that the post of Assistant Soil Conservation Officer (Engineering) in the Soil and Water Conservation Department shall from a combined cadre of Irrigation and Flood Control Department with effect from the date of amalgamation. WH/ESTT/17/88 of 17.10.89. (2) Consequent upon the amalgamation/encadrement as ordered above the Governor of Nagaland is also pleased to order that the post of Assistant Soil Conservation Officer (Engineering) in the Soil and Water Conservation Department shall from a combined cadre of Irrigation and Flood Control Department with effect from the date of amalgamation. The Governor is further pleased to order that the concerned shall be deemed to have been duly appointed to the post in the Irrigation and Flood Control Cadre. The period of service rendered in the Soil and Water Conservation Department that is, date of his regular appointment in the service with effect from 1.2.89 to 3.11.97 will also be deemed to have been counted in the Irrigation and Flood Control Department. (3) Fixation of his inter-se-seniority, procedure for execution of work etc. will be as recommended by the Expert Committee and as per Memorandum issued by the Personnel and Administrative Reforms Department No-AR-13/6/88 of 25.5.89. (a) His Cadre management and Technical supervision will be under Irrigation and Flood Control; and (b) Budget and Administrative control will rest with the Soil and Water Conservation Department as before. Sd/- Tinu Ao Secretary to the Govt, of Nagaland". 2. After all the above notifications were issued the department of Irrigation & Flood Control, issued a Notification No. IRRIRR/EST-53/93(Pt), dated 11.08.1998, fixing the seniority of the petitioner in the Irrigation & Flood Control department w.e.f 01.02.1989 i.e. the date on which he was appointed as Assistant Soil Conservation Officer (Engineering) in Soil & Water Conservation department, and placing him in the seniority list of the department of Irrigation & Flood Control next to Shri. Hotovi Sema, SDO (Irrigation & Flood Control), but above the respondent No. 6 and 7 based on the date of entry to service; the petitioner having entered into service on 01.02.1989 and the respondents No. 6 and 7 on 06.03.1990. Accordingly, the Deputy Secretary to the Government of Nagaland, department of Irrigation & Flood Control, issued a final seniority list of SDOs (Irrigation & Flood Control) on the same date i.e. 11.08.1998 placing the petitioner as Sl. No. 3 in the seniority list and the respondent No. 6 & 7 at Sl. No. 4 & 5. The notification and the final seniority list are reproduced here below one after the other; "Government of Nagaland Irrigation & Flood Control Department Notification Dated Kohima, the 11th Aug"98. No. 3 in the seniority list and the respondent No. 6 & 7 at Sl. No. 4 & 5. The notification and the final seniority list are reproduced here below one after the other; "Government of Nagaland Irrigation & Flood Control Department Notification Dated Kohima, the 11th Aug"98. No. IRR/EST/53/93 (Pt) In pursuance to personnel & Administrative Reforms Department's Notification No. AR/O&M-5/90 dated 4.11.97, the Governor of Nagaland is pleased to encadre the post of Assistant Soil Conservation Officer (Engineering) being held by Shri. Razouvolie Kelio, in the Irrigation & Flood Control Department and to refix his seniority w.e.f 1.2.89 from the date of his first entry/appointment as Assistant Soil Conservation Officer (Engineering) in Soil & Water Conservation department on direct recruitment through the Nagaland Public Service Commission. Thereafter, his seniority in the Irrigation and Food Control department will be next to Shri. Hutovi Sema, Sub-Divisional Officer (Irrigation & Flood Control) under rules. This supersede Office Memorandum No. IRR/ESTT-3/88 dated 12.9.97. Final seniority list of Sub-Divisional Officer's (Irrigation & Flood Control) degree holders is re-fixed as per Annexure enclosed. Sd/- A.K. Jain Commissioner & Secretary to the Government of Nagaland." "Final Seniority List of S.D.O. (I &FC) Class -I (Gazetted) Officer in respect of Degree holders recruited directly through Nagaland Public Service Commission as on 01.06.1998 Sl. Name of the Officers Date of Birth Education qualification Dt. of first entry in to the Govt. Service Date of subsequent appointment into Govt. Service Weather permanent or temporary Date of appointment to the present post Dt. of counting seniority in the grades Remarks 1. Er.Tsuk-tinungsang 02.03.60 B.E. Civil 12.06.88 - Temporary 21.06.88 21.06.88 promoted 2 Er. Hotovi Sema 07.12.63 B.Sc(Agre.Engg) 21.06.88 Temporary 21.06.88 21.06.88 promoted 3 Er.Razouvolie Kelio 01.07.64 B.Tech(Agri Engg.) 01.2.89 Temporary 01.02.89 01.02.89 4. Er.Ghukhui Zhimo 15.06.63 B.E. Civil 06.03.90 Temporary 06.03.90 06.03.90 promoted 5. Er.K.Hutoi 02.05.66 B.E. Civil 06.03.90 Temporary 06.03.90 06.03.90 promoted Sd/- (Thungbamo Lotha) Deputy Secretary to the Govt. of Nagaland" 3. The private respondents being aggrieved by the amalgamation order and encadrement of the post of Soil Conservation Officer and the petitioner to the department of Irrigation & Flood Control filed a W.P. (C) No. 85(K) of 2003 before this Court challenging the same. However, the same was withdrawn after an amicable settlement was reached between the parties in a meeting held on 18.07.2013, due to the intervention of the Engineer's Association. However, the same was withdrawn after an amicable settlement was reached between the parties in a meeting held on 18.07.2013, due to the intervention of the Engineer's Association. The Minutes of the meeting is reproduced here below;- "Office of the Irrigation & Flood Control Department Engineers Association : Nagaland No. Idea/Meeting-3/93/ Dated, Kohima the 18th July, 2003. Minutes of the joint Meeting with the Additional Chief Engineer (HOD) of Irrigation & Flood Control Deptt. Along with the Members Affected by the Amalgamation/Encadrement of ASCO (Engg.) held on 18th July, 2003. The following members were present. 1. Er. Mezukhol - Addl. Chief Engineer 2. Er. T. Yanger -Superintending Engineer 3. Er. Echongbemo Lotha -Executive Engineer (D) Dte. 4. Er. Eyono-u - Executive Engineer Dte. 5. Er. Tsukunungsang - Executive Engineer MKG 6. Er. S. Odyuo - Executive Engineer NEPED 7. Er. Hotovi - Executive Engineer Kohima 8. Er. R. Kelio - ASCO (Engg.) S&WC 9. Er, Ghukhui - SDO NEPED 10. Er.Hutoi-SDO(IC)Dte 11. Er. Lanu Longchar -SDO Mkba 12. Er. Thepfusalie -SDO Kohima The President of IDEA, who chaired the joint meeting welcome the members present, and on request of the Chairman, Gen. Secretary IDEA, appraised the members of the last emergency meeting held on 04.07.2003 arising out of the Amalgamation/Encadrement of ASCO (Engg) and the issue of promoting senior most SDO's to 2(two) Executive Engineer vacant post thereof. After thorough deliberation an agreement was arrived at between 1. Er. R. Kelio and 2. Er. Ghukhui and party, for the larger interest of the department, which was settled as follows; 1. Er. R. Kelio not to claim promotion till the Hydrologist post is created in the department. 2. Er. Ghukhui & party to immediately withdraw the court case. 3. Er. R. Kelio to spearhead in pursing the creation of Hydrologist post in the department. Sd/- (Er.S. Odyuo) President Idea, Nagaland Sd/- (Er. Hutoi Sumi) Gen. Secretary Idea, Nagaland.” 4. Following the settlement between the parties, the private respondent No. 6 was promoted to the Executive Engineer on officiating basis w.e.f. 25.11.2003, vide Notification No. IRR/ESTT-12/2003, dated 28.11.2003, and the private respondent No. 7 was also promoted to the post of Executive Engineer on officiating basis w.e.f. 01.12.2003, vide Notification No. IRR/ESTT-12/2003, dated 29.11.2003. Secretary Idea, Nagaland.” 4. Following the settlement between the parties, the private respondent No. 6 was promoted to the Executive Engineer on officiating basis w.e.f. 25.11.2003, vide Notification No. IRR/ESTT-12/2003, dated 28.11.2003, and the private respondent No. 7 was also promoted to the post of Executive Engineer on officiating basis w.e.f. 01.12.2003, vide Notification No. IRR/ESTT-12/2003, dated 29.11.2003. The promotion of the two private respondents were however, tagged with three conditions each and the same are underlined in the contents of the two notifications reproduced here below one after the other; "Government of Nagaland Department of Irrigation & Flood Control Nagaland: Kohima Notification Dated, Kohima, the 28.11.2003. No. IRR/ESTT-12/2003. The Governor of Nagaland is pleased to order officiating promotion of the following SDOs (I &FC) to the post of Executive Engineer (I& FC) (Class-I Gazetted) in the scale pay of Rs. 10,000-325-15200/- P.M. plus all other allowances as are admissible under rules enforce from time to time in Nagaland w.e.f. 25.11.03. 1. Er. Khreinguzo Angami SDO (I&FC) is promoted as E.E. against existing vacancy caused by Er. K.Y.Y Sema, E.E. retired. 2. Er. Ghukhui Zhimomi SDO (I&FC) is promoted as E.E, against existing vacancy caused by promotion of Er. T. Yanger E.E., I&FC and withdrawn from NEPED with immediate effect. 2. The above officers are being presently promoted in supersession of Er. Razouvolie Kelio. SDO, I&FC temporarily attached to Soil & Water Conservation department as ASCO (Engg.) as the post of Hydrologist is yet to be created. 3. This promotion order is purely on temporary basis for administrative convenience and will not effect the seniority of the officers in the grade. Er. Razouvolie Kelio SDO I&FC shall still continue to maintain his inter-se-seniority above Er. Ghukhui Zhimomi to higher grade. 4. The promotion are subject to regularisation by DPC. Sd/- R. Ezung, IAS Secretary to the Government of Nagaland". "Government of Nagaland Department of Irrigation & Flood Control Nagaland: Kohima Notification Dated, Kohima, the 29.11.2003. No.IRR/ESTT-12/2003-The Governor of Nagaland is pleased to order officiating promotion of Er. Hutoi Sema SDO (I &FC) to the post of Executive Engineer (I& FC) (Class-I Gazetted) against the resultant vacancy cause by voluntary retirement of Er. Khrienguzo Angami E.E, I&FC in the scale pay of Rs. 10,000-325- 15200/- P.M. plus all other allowances as are admissible under rules in Nagaland from time to time w.e.f. 01.12.2003. 2. Hutoi Sema SDO (I &FC) to the post of Executive Engineer (I& FC) (Class-I Gazetted) against the resultant vacancy cause by voluntary retirement of Er. Khrienguzo Angami E.E, I&FC in the scale pay of Rs. 10,000-325- 15200/- P.M. plus all other allowances as are admissible under rules in Nagaland from time to time w.e.f. 01.12.2003. 2. The promotion is made purely on temporary basis for administrative convenience and will not effect the seniority of the officers in the grade. 3. The promotion is subject to regularisation by DPC. 4. In the interest of public service on promotion Er. K. Hutoi Sema E.E (I&FC) shall continue to be posted at Mon till further order. Sd/-R. Ezung, IAS, Secretary to the Government of Nagaland." 5. Thereafter, the Joint Secretary to the Government of Nagaland, department of Irrigation & Flood Control vide Notification No. IRR/ESTT-53/93, dated 03.09.2004, notified creation of 1 (one) post of Hydrolo- gist, Class-I Gazetted) in the scale of pay of Rs. 10,000-325-15200/- P.M. plus all other allowances as are admissible from time to time. To this post the petitioner was promoted on officiating basis w.e.f 27.11.2003, vide Notification No. IRR/ESTT-12/2003, dated 22.12.2004. Few months thereafter, the Secretary to the Government of Nagaland, department of Irrigation & Flood Control, issued another Notification No. IRR/ESTT-12/2003, dated 13.05.2005, in supersession of the earlier order given above promoting the petitioner to the post of Hydrologist on officiating basis with all other conditions remaining the same but replacing the effective date of promotion by 03.09.2004 i.e. the date on which creation of the post was notified. "Government of Nagaland Department of Irrigation & Flood Control Nagaland: Kohima Notification Dated, Kohima, the 13.05.2005 No. IRR/ESTT-12/2003 - In view of the Para 3 of this Department's earlier Notification No. IRR/ESTT-12/2003 of 28.11.2003, the Governor of Nagaland is pleased to order officiating promotion of Er. Razouvolie Kelio, Sub-Divisional Officer (I&FC) presently posted at Soil & Water Conservation department, Kohima is promoted to the post of Hydrologist (Class-I Gazetted) in the scale pay of Rs. 10,000-325-15200/- P.M. plus all other allowances as are admissible under rules in Nagaland with immediate effect from 03.09.2004 (under FR-22-C). 2. Razouvolie Kelio, Sub-Divisional Officer (I&FC) presently posted at Soil & Water Conservation department, Kohima is promoted to the post of Hydrologist (Class-I Gazetted) in the scale pay of Rs. 10,000-325-15200/- P.M. plus all other allowances as are admissible under rules in Nagaland with immediate effect from 03.09.2004 (under FR-22-C). 2. Shri. Razouvolie Kelio, Sub-Divisional Officer (I&FC) promoted to the post of Hydrologist shall continue to maintain his inter-seniority above Shri. Z. Ghukhui Zhimomi E.E (I&FC) and Shri. K. Hutoi Sema E.E (I&FC) in the higher grade as per Notification No. IRR/ESTT-12/2003 of 29.11.2003 respectively. Accordingly, by his pay is also protected over his immediate juniors. 3. His promotion is purely on officiating promotion subject to regularization by departmental promotion committee. 4. In the interest of Public Service Er. Razouvolie Kelio, Hydrologist on promotion is posted at Directorate of Irrigation & Flood Control, Kohima till further order. 5. This supersedes the department earlier Notification No. IRR/ESTT-12/2003 of 22.12.04. Sd/- Imkonglemba, IAS, Secretary to the Government of Nagaland." 6. The final combined seniority list of the Engineers, (Class-I Gazetted Officers) in the department of Irrigation & Flood Control was circulated vide Circulation No. IRRESTT-3/88, dated 10.06.2010, issued by the Deputy Secretary to the Government of Nagaland, department of Irrigation & Flood Control, wherein the name of the petitioner was given at Sl. No. 7 and the name of the respondent No. 6 & 7 were given at Sl. 8 & 9. The relevant portion of the Circulation and the list of the seniority are reproduced here below: "Government of Nagaland Department of Irrigation & Flood Control Nagaland: Kohima No.IRR/ESTT-3/88 Dated Kohima, the 10th June' 10. Sub:- Final Combined Seniority list of Engineers, Class-I Gazetted Officers (Degree & Diploma Holders) in the Deptt of Irrigation & Flood Control as on 01.06.2010. With reference to this Deptt's Office Memorandum of even number dated 2nd Feb. 2009, the undersigned is directed to say that the representation/complaints received from the officers concerned against the tentative seniority list have been examined and necessary corrections have been made. Now therefore, a final combined seniority list of Engineers, Class-I Gazetted Officers (Degree & Diploma Holders) in the Deptt. of Irrigation & Flood Control as on 1.06.2010 is accordingly circulated herewith as per Annexure attached for information and guidance of all concerned. Henceforth, no further representation will be entertained. Sd/- (B. Thawang Konyak) IAS Secretary to the Govt. Now therefore, a final combined seniority list of Engineers, Class-I Gazetted Officers (Degree & Diploma Holders) in the Deptt. of Irrigation & Flood Control as on 1.06.2010 is accordingly circulated herewith as per Annexure attached for information and guidance of all concerned. Henceforth, no further representation will be entertained. Sd/- (B. Thawang Konyak) IAS Secretary to the Govt. of Nagaland." "Final Combined Seniority list of Engineers Class-I Gazetted Officers (Degree & Diploma) in the Department of Irrigation & Flood Control as on 01.06.2010. 1 2 3 4 5 6 7 Sl. Name Date of Birth Education qualification Date of first entry in govt. service date of the promotion to present post Remarks Chief Engineer 1 - - - - - - Addl. Chief Engineer 1. - - - - - - Superintending Engineer 1. - - - - - - 2. - - - - - - 3. - - - -- - - Executive Engineers 1. - - - - -- - 2. - - - - - - 3. -- - - - - - 4. Er. Razouvolie Kelio 1-7-1963 (Agri Engg) B.Tech 01.2.89 24.11.2003 Appointment made through NPSC 5. Er.Z.Ghukhui Zhimomi 15.8.1963 B.E.(Civil) 01.2.89 25.11.2003 -do- 6. Er. K. Hutoi 2.5.1996 B.E.(Civil) 06.3.90 25.11.2003 -do- Sd/- (Ivukhu Sema) Deputy Secretary to the Government of Nagaland." 7. Again in 2013, the Joint Secretary to the Government of Nagaland, department of Irrigation & Flood Control circulated through a Circular No. IRR/ESTT-3/88, dated 7.5.2013, the final combined seniority list of Class-I & II Gazetted Officers (Degree & Diploma Holders) in the department of Irrigation & Flood Control. In that circulation, the name of the petitioner was given at Sl. No. 4 and the name of the respondent No. 6 & 7 were given at Sl. No. 5 & 6 of the seniority list. The relevant portion of the circulation and the seniority list are given here below: "Government of Nagaland Department of Irrigation & Flood Control Nagaland: Kohima No. IRR/ESTT-3/88 Dated Kohima, the May' 2013. Sub:-Final Combined Seniority list of Engineers, Class-I Gazetted Officers (Degree & Diploma Holders) in the Deptt of Irrigation & Flood Control as on 03.05.2013. With reference to this Deptt's Office Memorandum of even number dated 04.12.12, the undersigned is directed to say that the representation/complaints received from the officers concerned against the tentative Combined seniority list have been examined and necessary corrections have been made. With reference to this Deptt's Office Memorandum of even number dated 04.12.12, the undersigned is directed to say that the representation/complaints received from the officers concerned against the tentative Combined seniority list have been examined and necessary corrections have been made. Now therefore, a final combined seniority list of Engineers, Class-1 Gazetted Officers (Degree & Diploma Holders) in the Deptt. of Irrigation & Flood Control is accordingly circulated herewith as per Annexure attached for information and guidance of all concerned. Henceforth, no further representation will be entertained. Sd/- (R. Binchilo Thong) IAS Secretary to the Govt. of Nagaland." "Final Seniority list of Engineers Class-I Gazetted Officers (Degree & Diploma) in the department of Irrigation & Flood Control as on 03.05.2013 1 2 3 4 5 6 7 Sl . Name Date of Birth Education qualification Date of first entry in govt. service date of the promotion to present post Remarks Chief Engineer 1 - - - - - - Addl. Chief Engineer 1. - - - - - - Superintending Engineer 1. - - - - - - 2. - - - - - - 3. - - - -- - - Executive Engineers 1. - - - - -- - 4. Er . Razouvolie Kelio 1-7-1964 (Agri Engg) B.Tech 01.2.89 24.11.2003 Appointment made through NPSC 8. Er.Z.Ghukhui Zhimomi 15.8.1963 B.E.(Civil ) 01.2.89 25.11.2003 -do- 6. Er . K. Hutoi 2.5.1996 B.E.(Civil ) 06.3.90 25.11.2003 -do- Sd/- (Ivukhu Sema) Joint Secretary to the Govt. of Nagaland." 8. In the year 2015, the Under Secretary to the Government of Nagaland, department of Irrigation & Flood Control, issued Office Memorandum No. IRR/ESTT- 3/88, dated 03.03.2015, wherein the tentative combined seniority list of Class-I & II Gazetted Officers (Degree & Diploma Holders) in the department of Irrigation & Flood Control as on 01.03.2015 was circulated and objections in written with documentary evidence were invited within 30(thirty) days from the date of issue of the memorandum. In that memorandum, the name of the petitioner was shown at Sl. No. 2 in the seniority list and names of the private respondent No. 6 & 7 were shown at Sl. No. 3 & 4. The relevant portions of the memorandum are reproduced here below:- "Government of Nagaland Department of Irrigation & Flood Control Nagaland: Kohima Office Memorandum No.IRR/ESTT-3/88/// Dated, Kohima, the 3rd Mar'2015. No. 2 in the seniority list and names of the private respondent No. 6 & 7 were shown at Sl. No. 3 & 4. The relevant portions of the memorandum are reproduced here below:- "Government of Nagaland Department of Irrigation & Flood Control Nagaland: Kohima Office Memorandum No.IRR/ESTT-3/88/// Dated, Kohima, the 3rd Mar'2015. Sub:- Tentative Combined Seniority list of Class I & II Gazetted Officers (Degree & Diploma Holders) in the Department of Irrigation & Flood Control as on 01.03.2015. The tentative combined seniority list of Class-I & II Gazetted, both degree & diploma holders in the department as on 01.03.15 is hereby circulated for information to all concerned as per the attached. The names of individual officers have been arranged according to Rule 21 of Nagaland Irrigation & Flood Control Engineering Service (Group A &B) Rules, 2014. Any objections/omissions/errors in the list may be intimated to the Government in writing with documentary evidence within 30(thirty) days from the date of issue of this memorandum for further examination. If no representation is received within the stipulated time, the tentative seniority list will be treated as accepted. No further complaints/representation received after the stipulated time will be entertained under any circumstances. Sd/- (Bendangkokba) IAS Secretary to the Govt. of Nagaland." "Tentative Combined Seniority list of Engineers Class-I Gazetted Officers (Degree & Diploma) in the department of Irrigation & Flood Control as on 01.03.2015. Sl. Name Date of Birth Education qualification Date of first entry in govt. service date of the promotion to present post Remarks 1 2 3 4 5 6 7 Chief Engineer 1 - - - - - - Addl. Chief Engineer 1. - - - - - - Superintending Engineer 1. - - - - - - 2. - - - - - - 3. - - - -- - - Executive Engineers 1. - - - - -- - 2. Er. Razouvolie Kelio 1-7-1964 (Agri Engg) B.Tech 01.2.89 24.11.2003 Appointment made through NPSC 8. Er.Z.Ghukhui Zhimomi 15.8.1963 B.E.(Civil) 01.2.89 25.11.2003 -do- 6. Er. K. Hutoi 2.5.1996 B.E.(Civil) 06.3.90 25.11.2003 -do- Sd/- (Meduhele) Deputy Secretary to the Govt. of Nagaland." 9. On 17.06.2015, a DPC was held to consider regularisation of the promotion of officers in the department of Irrigation & Flood Control including that of the officers occupying post of Executive Engineer in the department. Er. K. Hutoi 2.5.1996 B.E.(Civil) 06.3.90 25.11.2003 -do- Sd/- (Meduhele) Deputy Secretary to the Govt. of Nagaland." 9. On 17.06.2015, a DPC was held to consider regularisation of the promotion of officers in the department of Irrigation & Flood Control including that of the officers occupying post of Executive Engineer in the department. In the proceedings of the DPC the name of the petitioner was given at Sl. No. 6 with the date of his regularization as w.e.f 13.05.2005 and the names of the private respondents No. 6 & 7 were given at Sl. No. 7 & 8 with their date of regularisation w.e.f. 28.11.2003 and 29.11.2003 respectively. The relevant portion of the DPC proceeding is given here below; - "Minutes of the Meeting of the Departmental Promotion Committee of Irrigation & Flood Control Department. A meeting of the Departmental Promotion Committee to consider the case of regularisation and promotion under Irrigation & Flood Control department was held on 17.06.2015 at 11:00 hrs in the Interview Room, Nagaland Public Service Commissioner. The following Members were present; - 1. Shri. A. Yanang Konyak, Chairman 2. Shri. Idailung Thou, Member, NPSC Member 3. Shri. T. Imkonglemba Ao, IAS Comm. & Secy. Agri., representing, CS -Member 4. Shri. Renboni Mozhui, Dy. Secretary, P&ARDeptt. -Member 5. Shri. Bendangkokba IAS, Secy. I & FC - Member 6. Shri. Njilo Kemp, Chief Engineer, I&FC, Deptt. - Member Secretary The Departmental Promotion Committee after going through the seniority list and service records as available, recommended the following officers to the post as shown below:- Sl. No. Name Designation Remarks 1. - - - 2 - - - 3 - -- - 4 - - - 5 - - - 6. Er.Razouvolie Kelio Executive Engineer Reguarised as EE w.e.f. 13.05.05 7. Er. Z. Ghukhui Zhimomi Executive Engineer Reguarised as EE w.e.f. 28.11.2003 8. Er.K.Hutoi Sema Executive Engineer Reguarised as EE w.e.f. 29.11.2003 The Committee (DPC) also recommended promotion to Er. Keduvizp Sophie SDO to the post of Executive Engineer on the day of sitting DPC i.e. 17.06.2015. Observation: The Committee (DPC) advised the Department to strictly maintain the principle of 75% and 25% ratio henceforth for promotion to the post of Executive Engineer for Degree and Diploma holders respectively. Sd/- (A.Yangang Konyak Chairman Sd/- (Idailung Thou) Member Sd/- (T.Imkonglemba AO) Member Sd/- (Renboni Mozhui) Member Sd/- (Bendangkokba) Member Sd/- (Njilo Kemp) Member 10. Observation: The Committee (DPC) advised the Department to strictly maintain the principle of 75% and 25% ratio henceforth for promotion to the post of Executive Engineer for Degree and Diploma holders respectively. Sd/- (A.Yangang Konyak Chairman Sd/- (Idailung Thou) Member Sd/- (T.Imkonglemba AO) Member Sd/- (Renboni Mozhui) Member Sd/- (Bendangkokba) Member Sd/- (Njilo Kemp) Member 10. Pursuant to the DPC held the Notification No. IRR/ESTT-36/92, dated 29.6.15, was issued by Deputy Secretary to the Government of Nagaland, department of Irrigation & Flood Control wherein it was stated that the Governor of Nagaland is pleased to regularise officiating promotion of the Engineer under the Irrigation & Flood Control department. The relevant contents of the notification is given here below;- "Government of Nagaland Department of Irrigation & Flood Control Nagaland: Kohima Notification Dated Kohima, the 29th June' 2015. No. IRR/ESTT-36/92 - On the recommendation of the Department Promotion Committee meeting held on 17.06.2015, the Governor of Nagaland, is pleased to regularise the Officiating Promotion of the following Engineers under the Irrigation & Flood Control Department as shown against their names as per the chart given below: Sl. No. Name Designation Remarks 1. - - - 2 - - - 3 - -- - 4 - - - 5 - - - 6. Er.Razouvolie Kelio Executive Engineer Reguarised as EE w.e.f. 13.05.05 7. Er. Z. Ghukhui Zhimomi Executive Engineer Reguarised as EE w.e.f. 28.11.2003 8. Er.K.Hutoi Sema Executive Engineer Reguarised as EE w.e.f. 29.11.2003 Sd/- Bendangkokba, IAS, Secretary to the Govt. of Nagaland." 11. Thereafter, the Deputy Secretary to the Government of Nagaland, department of Irrigation & Flood Control, issued a Circular No. IRR/ESTT-3/88/241, dated 17.07.2015, wherein and whereby the final combined seniority list of Class-I & Class-II Gazetted Officers (Degree & Diploma Holders) in the department of Irrigation & Flood Control as on 01.07.2015 was circulated. In that circular, the name of the petitioner was given at Sl. No. 2 in the column of the Executive Engineers and names of the private respondent No. 6 & 7 were given at Sl. No. 3 & 4 of the same. The relevant contents of the circular are given here below; - "Government of Nagaland Department of Irrigation & Flood Control Nagaland: Kohima No. IRR/ESTT-3/88//Dated Kohima, the 17th July'2015. Sub:- Final Combined Seniority list of Engineers, Class-I Gazetted Officers (Degree & Diploma Holders) in the Deptt of Irrigation & Flood Control as on 01.07.2015. No. 3 & 4 of the same. The relevant contents of the circular are given here below; - "Government of Nagaland Department of Irrigation & Flood Control Nagaland: Kohima No. IRR/ESTT-3/88//Dated Kohima, the 17th July'2015. Sub:- Final Combined Seniority list of Engineers, Class-I Gazetted Officers (Degree & Diploma Holders) in the Deptt of Irrigation & Flood Control as on 01.07.2015. With reference to this Deptt's Office Memorandum of even number dated 03.03.15, the undersigned is directed to say that the representation/complaints received from the officers concerned against the tentative combined seniority list have been examined and necessary corrections have been made. Now therefore, a final combined seniority list of Engineers, Class-I Gazetted Officers (Degree & Diploma Holders) in the Deptt. of Irrigation & Flood Control is circulated herewith as per Annexure attached for information of all concerned. Henceforth, no further representation will be entertained. Sd/- (Bendangkokba) IAS Secretary to the Govt. of Nagaland." "Final Combined Seniority list of Engineers Class-I Gazetted Officers (Degree & Diploma) in the Department of Irrigation & Flood Control as on 01.07.2015. Sl. Name Date of Birth Education qualification Date of first entry in govt. service date of the promotion to present post Remarks 1 2 3 4 5 6 7 Chief Engineer 1 - - - - - - Addl. Chief Engineer 1. - - - - - - Superintending Engineer 1. - - - - - - 2. - - - - - - 3. - - - -- - - Executive Engineers 1. Er. Hutovi Ayemi 07.12.1962 B.S. (Agri Eng.) 21.6.1988 2.5.2001 Appointment made through NPSC 2. Er. Razouvolie Kelio 1-7-1964 B.Tech(Agri Engg) 01.2.89 13.05.2005 -do- 3. Er. Ghukhui Zhimomi 15.8.1963 B.E.(Civil) 06.03.1990 28.11.2003 -do- 4. Er. Hutoi Sema 2.5.1996 B.E.(Civil) 06.3.1990 25.11.2003 -do- Sd/- (Meduhele) Deputy Secretary to the Government of Nagaland." 12. Because his date of promotion was shown as 13.05.2005, the petitioner felt highly aggrieved, therefore, submitted a representation dated 02.08.2015, to the Secretary, Government of Nagaland, Department of Irrigation and Flood Control, through proper channel requesting for rectification of the same keeping in view the facts and circumstances under which his post of Assistant Soil Conservation Officer (Engineering) was amalgamated in to the Cadre of Department of Irrigation and Flood Control and the facts and circumstances that followed in his service carrier. Following the submission of his representation a Review DPC was held on 29.3.16 by the Nagaland Public Service Commission and the DPC recommended that the date of regularization of the petitioner's service to the post- Executive Engineer shall be w.e.f. 03.09.2004, the date on which creation of the post was notified. The proceedings of the DPC is reproduced here below; "Minutes of the Meeting of the Departmental Promotion Committee (DPC) under Irrigation & Flood Control Department. A review of Department Promotion Committee to consider the case of regularization in respect of Er. Razouvolie Kelio under Irrigation & Flood Control Department was held on 29.03.2016 at 11.30 hrs in the Interview Room, Nagaland Public Service Commission. The following Members were present:- 1. Shri. A. Yanang Konyak. Chairman, NPSC -Chairman 2. Shri. Adailung Thou, Member, NPSC- Member 3. Smti. Bijoya P. Chitri, C&S. Fishery Deptt. representing CS -Member 4. Smti. Angau. I. Thou, IAS. Secy, P&AR. Deptt. - Member 5. Shri. Bendangkokba. Secretary I & FC. Deptt. - Member 6. Shri. Njilo Kemp, Chief Er. I & FC Deptt. -Member Secretary The Department Promotion Committee after thorough examination of the case gave the following observations/decision. Approved for regularization of the promotion of Er. Razouvolie Kelio to the post of Executive Engineer w.e.f. 03.09.2004. The Committee expressed serious concern regarding procedural lapses committed by the department in respect of Retrospective Promotion which is banned and warned the department not to commit such irregularities in future. Sd/- (A.Yangang Konyak Chairman Sd/- (Adailung Thou) Member Sd/- (Bijoya P Chetri) Member Sd/- (Angau.I. Thou) Member Sd/- (Bendangkokba) Member Sd/- (Njilo Kemp) Member 13. In pursuance of the recommendation of the DPC, Deputy Secretary to the Government of Nagaland, Department of Irrigation and Flood Control, issued a Notification No. IRR/ESTT-36/92, dated 31.03.2016, notifying that the officiating promotion of the petitioner to the post of Executive Engineer under the Irrigation and Flood Control Department is regularized w.e.f. 03.09.2004. The contents of the notification are reproduced here below; "Government of Nagaland Department of Irrigation & Flood Control Nagaland: Kohima Notification Dated, Kohima, the 31st March, 2016. No. IRR/ESTT-36/92 :: In partial modification of this Department's Notification No. IRR/ESTT-36/92/2015 dated 29.06.2015 and on the recommendation of the Departmental Promotion Committee review meeting held on 29.03.2015, the Governor of Nagaland is pleased to regularise the officiating promotion of Er. No. IRR/ESTT-36/92 :: In partial modification of this Department's Notification No. IRR/ESTT-36/92/2015 dated 29.06.2015 and on the recommendation of the Departmental Promotion Committee review meeting held on 29.03.2015, the Governor of Nagaland is pleased to regularise the officiating promotion of Er. Razouvolie Kelio, Executive engineer under the Irrigation & Flood Control Department w.e.f 03.06.2004. Sd/- (Bendangkokba) IAS Secretary to the Govt. of Nagaland." 14. Being aggrieved by the recommendation of the DPC and the Notification given above the petitioner once again submitted a representation but the same having been ignored by the respondents, he has come to this Court praying as follows:- 1. To quash and set aside the impugned DPC Minutes dated 17.06.20IS, only with regard to petitioner and respondents No. 6 & 7. (Annexure-27 to the writ petition). 2. To quash and set aside the impugned Notification No. IRR/ESTT 36/92, dated 29.06.2015, issued by the Secretary to the Government of Nagaland, Department of Irrigation and Flood Control, only with regard to the petitioner and the private respondent Nos. 6 and 7.(Annexure-28 to the writ petition); 3. To quash and set aside the impugned Final Seniority List of 2015, Vide No. ERR/ESTT-3/88/241, dated 17.07.2015, issued by the Secretary to the Government of Nagaland, Department of Irrigation and Flood Control (only with regard to the petitioner and the private respondent Nos. 6 and 7) (Annexure-29 to the writ petition). 4. To quash and set aside the impugned review DPC Minutes dated 29.03.2016. (Annexure-32 to the writ petition). 5. To quash and set aside the impugned Notification No. IRR/ESTT-36/92/636, dated 31.03.2016, issued by the Secretary to the Government of Nagaland, Department of Irrigation and Flood Control. (Annexure-33 to the writ petition). 6. To direct respondents to restore the seniority of the petitioner over the respondent Nos. 6 and 7, in the grade of Executive Engineers/Hydrologist. 7. To direct the respondents to conduct a review DPC. 8. To direct the respondents to consider the case of the petitioner for promotion to the resultant vacancy of Superintending Engineer. And/or pass any other order or orders or direction as this Court may deem fit and proper in the facts and circumstances of this case for the ends of justice. 15. The case of the petitioner as submitted by Mr. Taka Masa, learned Sr. And/or pass any other order or orders or direction as this Court may deem fit and proper in the facts and circumstances of this case for the ends of justice. 15. The case of the petitioner as submitted by Mr. Taka Masa, learned Sr. counsel are as follows: (i) That since the petitioner enter his service i.e. to the post of Assistant Soil Conservation Officer (Engineering) in the department of Soil and Water Conservation Department on 21.02.1989, and his post was amalgamated to the department of Irrigation and Flood Control Department, along with him and since the private respondents No. 6 & 7, who were appointed to the post of SDO which is equivalent to the post that the petitioner was appointed to only on 06.03.1990, which is a date later than that of the appointment date of the petitioner he was rightly accepted as senior to and notified as senior to the private respondents in the series of seniority list notified by the concerned authority, therefore, he has to be placed above the two respondents in the seniority. (ii) That since the petitioner was promoted to the post of Hydrologist (Class-I Gazetted) equivalent to Executive Engineer in the department of Irrigation & Flood Control, vide Notification No. IRR/ESTT- 12/2003, dated 22.12.2004, w.e.f 27.11.2003, issued by the Commissioner &. Secretary to the Government of Nagaland, i.e. one day ahead of the date of promotion of respondent No. 6 and two days ahead of the date of promotion of respondent No. 7, which was keeping in tune with the policy adopted by the State Government at the time of amalgamation of the post of Assistant Soil Conservation Officer (Engineering) in the department of Soil and Water Conservation Department and the petitioner who was occupant of the said post at that time with the cadre of officers in the department of Irrigation & Flood Control department, regularization of his service in that post ought to have been given effect to from the same date i.e. 27.11.2003. Therefore, the Notification No. IRR/ESTT-12/2003, dated 13.05.2005, issued by the Secretary to the Government of Nagaland, department of Irrigation & Flood Control, which was issued in supersession of the earlier notification mentioned above i.e. Notification No. IRR/ESTT-12/2003, dt. Therefore, the Notification No. IRR/ESTT-12/2003, dated 13.05.2005, issued by the Secretary to the Government of Nagaland, department of Irrigation & Flood Control, which was issued in supersession of the earlier notification mentioned above i.e. Notification No. IRR/ESTT-12/2003, dt. 22.12.14, wherein date of officiating promotion of the petitioner is given effect to from 03.09.2004 was not in keeping in tune with the amalgamation policy as such, not reasonable and acceptable to the petitioner. (iii) That all along the respondents, keeping in view of the fact that the petitioner was appointed earlier at the entry level of the service than the respondents No. 6 & 7 and also keeping in view the policy adopted at the time of amalgamation of the post held by the petitioner issued his officiating promotion notification dated 22.12.2004, by giving the same retrospective effect from 27.11.2003 and they have also maintained his seniority above the two private respondents in all the seniority list issued from time to time, therefore, the DPC proceeding dated 17.06.2015, which recommended regularization of the petitioner in the post of Executive Engineer w.e.f. 13.05.2005 and regularization of the two private respondents w.e.f. 28.11.2003 and 29.11.2003 respectively and the Notification No. TRRI ESTT-36/92, dated 29.06.2015, issued in pursuant thereto are without any basis as such, illegal, discriminatory and unreasonable. Therefore, they need to be quashed and set aside. (iv) That for the same reason as stated above the seniority list circulated by the department of Irrigation & Flood Control vide Circular No. IRR/ESTT-3/88/241, dated 17.07.2015, wherein the dates of regularization of the petitioner and the two private respondents No. 6 & 7 were shown as stated in the previous paragraph is without any basis, therefore, illegal, discriminatory and unreasonable. As such, the same also needs to be quashed and set aside. As such, the same also needs to be quashed and set aside. (v) That for the same reason or reasons stated in the above two paragraphs the proceedings of the review DPC held on 29.03.2016, which recommended for approval of the regularization of the petitioner's promotion to the post of Executive Engineer w.e.f 03.09.2004 and that of the two private respondents No. 6 & 7 w.e.f 28.11.2003 and 29.11.2003 and the notification issued in pursuant thereto by the Deputy Secretary to the Government of Nagaland, department of Irrigation & Flood Control being No. IRR/ESTT-36/92, dated 31.03.2016, confirming regularization of the petitioner's promotion to Executive Engineer and that of the two private respondents as recommended by the DPC are without any basis and unreasonable, as such, they need to be quashed and set aside. (vi) That as per the agreement reached between all the parties concerned in the two Meetings organized by the Engineer's Association held on 18.07.2003 and 06.09.2003, the petitioner was not to claim promotion to the post of Executive Engineer till the post of Hydrologist was created and the private respondents No. 6 & 7 even if they were to be promoted to the post of Executive Engineer ahead of the petitioner were not to claim seniority over him. Therefore, seniority of the petitioner above the two private respondents were to be maintained as such. (vii) That in the Notifications dated 28.11.2003 and 29.11.2003 wherein and whereby the two private respondents were promoted to the post of Executive Engineer on officiating basis it was clearly mentioned that the promotions were purely on temporary basis for administrative convenience and the same will not affect seniority position of the officers in the grade. Therefore, even though the two private respondents were promoted on officiating basis earlier than the petitioner they cannot be placed above him in the seniority list. (viii) That a post of Hydrologist (equivalent to Executive Engineer) was to be transferred from the department of Soil & Water Conservation to the department of Irrigation & Flood Control, as per the amalgamation policy adopted by the State Government but due to the refusal of the department of Soil & Water Conservation the transfer of the post did not take place. As such, post had to be created in the department of Irrigation & Flood Control and the process for creation of such post had taken time and in the meanwhile, the respondents No. 6 & 7 had to be promoted to the post of Executive Engineer which were lying vacant in the exigencies of the administration and these circumstances had happened not due to any act of omission or commission on the part of the petitioner but due to lack of foresight, prompt and appropriate action on the part of the Government. Therefore, the petitioner should not be allowed to suffer. In summing up his submission the learned counsel submitted that since there is no dispute that at the entry level the petitioner was senior to the respondents No. 6 & 7 and no grievance was expressed by the private respondents and since all the seniority list issued thereafter have consistently shown the petitioner as senior above the two private respondents No. 6 & 7, the same should be maintained. (ix) That in the review DPC and the orders issued in pursuant to such DPC the date of regularization of the promotion of the petitioner was changed while that of the private respondents No. 6 & 7 remain unchanged, therefore, the DPC proceedings and the orders issued in pursuant thereto are discriminatory. It is also submitted by the learned counsel that since the respondents No. 6 & 7 and the Government respondents from the very beginning had accepted the seniority position of the petitioner as senior (to respondents No. 6 & 7) they cannot now claimed otherwise because of the principle of waiver and estoppel. The learned counsel further submitted that because a logical conclusion has been drawn by placing the petitioner higher in the seniority list than the respondents No. 6 & 7, the same cannot be brush aside. Lastly, the learned counsel submitted that officiating promotion does not conferred any right to the promotees, therefore, the respondents No. 6 & 7 even though they were promoted earlier than the petitioner on officiating basis cannot claim seniority over him. In support of his submission, the learned Sr. counsel cited the following judgment passed by the Hon'ble Supreme Court. The relevant portions of the judgments are reproduced here below one after the other; - (1) Dessola Rama Rao & Anr. v. State of Andhra Pradesh & Ors. In support of his submission, the learned Sr. counsel cited the following judgment passed by the Hon'ble Supreme Court. The relevant portions of the judgments are reproduced here below one after the other; - (1) Dessola Rama Rao & Anr. v. State of Andhra Pradesh & Ors. reported in 1988 (Supp) Supreme Court Cases 221, para-4. "4. The law relating to inter se seniority in a cadre is well settled. If there be a rule indicating the manner in which such seniority has to be fixed, that is binding. In the absence of such a rule, length of service is the basis for fixing inter se seniority. The High Court has found, and there is no longer any dispute, that respondents 3 and 4 have put in longer service than the appellants in the post of Assistant Engineer. In that view of the matter, the State Government was right, and the High Court appropriately approved it, that the appellants would rank below the respondent 3 and 4 in the promotional benefit would be given to them after that claim of the respondents 3 and 4 has been duly considered. (2). M/s. Motilal Padampat Sugar Mills v. State of Uttar Pradesh & Ors. reported in (1979) 2 SCC 409 , para-5, 6, 8 -15. "5. We shall first deal with the question of waiver since that can be disposed of in a few words. The High Court held that even if there was an assurance given by the 4th respondent on behalf of the State Government and such assurance was binding on the State Government on the principle of promissory estoppel, the appellant had waived its right under it by accepting the concessional rates of sales tax set out in the letter of the 5th respondent dated 20th January, 1970. We do not think this view taken by the High Court can be sustained. In the first place, it is elementary that waiver is a question of fact and it must be properly pleaded and proved. No plea of waiver can be allowed to be raised unless it is pleaded and the factual foundation for it is laid in the pleadings. Here it was common ground that the plea of waiver was not taken by the State Government in the affidavit filed on its behalf in reply to the writ petition, nor was it indicated even vaguely in such affidavit. Here it was common ground that the plea of waiver was not taken by the State Government in the affidavit filed on its behalf in reply to the writ petition, nor was it indicated even vaguely in such affidavit. It was raised for the first time at the hearing of the writ petition. That was clearly impermissible without an amendment of the affidavit in reply or a supplementary affidavit raising such plea. If waiver were properly pleaded in the affidavit in reply, the appellant would have had an opportunity of placing on record facts showing why and in what circumstances the appellant came to address the letter dated June 25, 1970 and establishing that on these facts there was no waiver by the appellant of its right to exemption under the assurance given by the 4th respondent. But in the absence of such pleading in the affidavit in reply, this opportunity was denied to the appellant. It was, therefore, not right for the High Court to have allowed the plea of waiver to be raised against the appellant and that plea should have been rejected in limine. 6. Secondly, it is difficult to see how, on the facts, the plea of waiver could be said to have been made out by the State Government. Waiver means abandonment of a right and it may be either express or implied from conduct, but its basic requirement is that it must be "an intentional act with knowledge". Per Lord Chelmsford, L.C. in Earl of Darnley v. London, Chatham and Dover Rly. Co. There can be no waiver unless the person who is said to have waived is fully informed as to his right and with full knowledge of such right, he intentionally abandons it. It is pointed out in Halsbury's Laws of England (4the edn.) Volume 16 in paragraph 1472 at page 994 that for a "waiver to be effectual it is essential that the person granting it should be fully informed as to his rights" and Isaacs, J. delivering the judgment of the High Court of Australia in Craine v. Colonial Mutual Fire Insurance Co. Ltd. has also emphasised that waiver "must be with knowledge, an essential supported by many authorities". Ltd. has also emphasised that waiver "must be with knowledge, an essential supported by many authorities". Now in the present case there is nothing to show that at the date when the appellant addressed the letter dated 25th June, 1970, it had full knowledge of its right to exemption under the assurance given by the 4th respondent and that it intentionally abandoned such right. It is difficult to speculate what was the reason why the appellant addressed the letter dated 25th June, 1970 stating that it would avail of the concessional rates of Sales Tax granted under the letter dated 20th January, 1970. It is possible that the appellant might have thought that since no notification exempting the appellant from Sales Tax had been issued by the State Government under section 4-A, the appellant was legally not entitled to exemption and that is why the appellant might have chosen to accept whatever concession was being granted by the State Government. The claim of the appellant to exemption could be sustained only on the doctrine of promissory estoppel and this doctrine could not be said to be so well defined in its scope and ambit and so free from uncertainty in its application that we should be compelled to hold that the appellant must have had knowledge of its right to exemption on the basis of promissory estoppel at the time when it addressed the letter dated 25th June, 1970. In fact, in the petition as originally filed, the right to claim total exemption from Sales Tax was not based on the plea of promissory estoppel which was introduced only by way of amendment. Moreover, it must be remembered that there is no presumption that every person knows the law. It is often said that everyone is presumed to know the law, but that is not a correct statement: there is no such maxim known to the law. Over a hundred and thirty years ago, Maule, J., pointed out in Martindale v. Falkner: There is no presumption in this country that every person knows the law: it would be contrary to common sense and reason if it were so. Scrutton, L.J., also once said: It is impossible to know all the statutory law, and not very possible to know all the common law. Scrutton, L.J., also once said: It is impossible to know all the statutory law, and not very possible to know all the common law. But it was Lord Atkin who, as in so many other spheres, put the point in its proper context when he said in Evans v. Bartleml: ..........the fact is that there is not and never has been a presumption that everyone knows the law. There is the rule that ignorance of the law does not excuse, a maxim of very different scope and application. It is, therefore, not possible to presume, in the absence of any material placed before the Court, that the appellant had full knowledge of its right to exemption so as to warrant an inference that the appellant waived such right by addressing the letter dated 25th June, 1970. We accordingly reject the plea of waiver raised on behalf of the State Government. 8. This principle of equity laid down by Lord Cairns made sporadic appearances in stray cases now and then but it was only in 1947 that it was disinterred and restated as a recognised doctrine by Mr. Justice Denning, as he then was, in the High Trees' case (supra). The facts in that case were as follows: The plaintiffs leased to the defendants, a subsidiary of the plaintiffs, in 1937 a block of flats for 99 years at a rent of & 2500/- a year. Early in 1940 and because of the war, the defendants were unable to find sub- tenants for the flats and unable in consequence to pay the rent. The plaintiffs agreed at the request of the defendants to reduce the rent to &. 1250/- from the beginning of the term. By the beginning of 1945 the conditions had improved and tenants had been found for all the flats and the plaintiffs, therefore, claimed the full rent of the premises from the middle of that year. The claim was allowed because the court took the view that the period for which the full rent was claimed fell outside the representation, but Mr. Justice Denning, as he then was, considered Obiter whether the plaintiffs could have recovered the covenanted rent for the whole period of the lease and observed that in equity the plaintiffs could not have been allowed to act inconsistently with their promise on which the defendants had acted. Justice Denning, as he then was, considered Obiter whether the plaintiffs could have recovered the covenanted rent for the whole period of the lease and observed that in equity the plaintiffs could not have been allowed to act inconsistently with their promise on which the defendants had acted. It was pressed upon the Court that according to the well settled law as laid down in Jorden v. Money, no estoppel could be raised against plaintiffs since the doctrine of estoppel by representation is applicable only to representations as to some state of facts alleged to be at the time actually in existence and not to promises de futuro which, if binding at all, must be binding only as contracts and here there was no representation of an existing state of facts by the plaintiffs but it was merely a promise or representation of intention to act in a particular manner in the future. Mr. Justice Denning, however, pointed out: "The law has not been standing still since Jorden v. Money. There has been a series of decisions over the last fifty years which, although they are said to be cases of estoppel are not really such. They are cases in which a promise was made which was intended to create legal relations and which, to the knowledge of the person making the promise, was going to be acted on by the person to whom it was made, and which was in fact so acted on. In such cases the courts have said that the promise must be honoured." The principle formulated by Mr. Justice Denning was, to quote his own words, "that a promise intended to be binding, intended to be acted on and in fact acted on, is binding so far as its terms properly apply". Now Hughes v. Metropolitan Railway Co. (supra) and Birmingham and District Land Co. v. London & North Western Rail Co. (supra), the two decisions from which Mr. Justice Denning drew inspiration for evolving this new equitable principle, were clearly cases where the principle was applied as between parties who were already bound contractually one to the other. In Hughes v. Metropolitan Railway Co. (supra) and Birmingham and District Land Co. v. London & North Western Rail Co. (supra), the two decisions from which Mr. Justice Denning drew inspiration for evolving this new equitable principle, were clearly cases where the principle was applied as between parties who were already bound contractually one to the other. In Hughes v. Metropolitan Railway Co. (supra) the plaintiff and the defendant were already bound in contract and the general principle stated by Lord Cairns, L.C. was: (1) "If parties who have entered into definite and distinct terms involving certain legal results afterwards-enter upon a course of negotiations". Ten years later Bowen, L. J. also used the same terminology in Birmingham and District Land Co. v. London and North Western Rail Co. (supra) that: "If persons who have contractual rights against others induce by their conduct those against whom they have such rights to believe----". These two decisions might, therefore, seem to suggest that the doctrine of promissory estoppel is limited in its operation to cases where the parties are already contractually bound and one of the parties induces the other to believe that the strict rights under the contract would not be enforced. But we do not think any such limitation can justifiably be introduced to curtail the width and amplitude of this doctrine. We fail to see why it should be necessary to the applicability of this doctrine that there should be some contractual relationship between the parties. In fact Donaldson, J. pointed out in Durham Fancy Goods Ltd. v. Michael Jackson (Fancy Goods) Ltd.: "Lord Cairns in his enunciation of the principle assumed a pre-existing contractual relationship between the parties, but this does not seem to me to be essential, provided that there is a pre-existing legal relationship which could in certain circumstances give rise to liabilities and penalties." But even this limitation suggested by Donaldson, J. that there should be a pre-existing legal relationship which could in certain circumstances give rise to liabilities and penalties is not warranted and it is significant that the statement of the doctrine by Mr. Justice Denning in the High Trees case does not contain any such limitation. Justice Denning in the High Trees case does not contain any such limitation. The learned Judge has consistently refused to introduce any such limitation in the doctrine and while sitting in the Court of Appeal, he said in so many terms, in Evenden v. Guildford City Association Football Club Ltd. "Counsel for the appellant referred us, however, to the second edition of Spencer Bower's book on Estoppel by Representation [1966) pp. 340-342] by Sir Alexander Turner, a judge of the New Zealand Court of Appeal. He suggests the promissory estoppel is limited to cases where parties are already bound contractually one to the other. I do not think it is so limited : see Durham Fancy Goods Ltd. v. Michael Jackson (Fancy Goods) Ltd. It applies whenever a representation is made, whether of fact or law, present or future, which is intended to be binding, intended to induce a person to act on it and he does act on it." This observation of Lord Denning clearly suggest that the parties need not be in any kind of legal relationship before the transaction from which the promissory estoppel takes its origin. The doctrine would seem to apply even where there is no pre-existing legal relationship between the parties, but the promise is intended to create legal relations or affect a legal relationship which will arise in future. Vide Halsbury's Laws of England, 4th edn. Vol. 16 p. 1018, Note 2 para 1514. Of course it must be pointed out in fairness to Lord Denning that he made it clear in the High Trees case that the doctrine of promissory estoppel cannot found a cause of action in itself, since it can never do away with the necessity of consideration in the formation of a contract, but he totally repudiated in Evenden's case the necessity of a preexisting relationship between the parties and pointed out in Crabb v. Aran District Council that equity will in a given case where justice and fairness demand, prevent a person from insisting on strict legal rights even where they arise, not under any contract, but on his own title deeds or under statue. The true principle of promissory estoppel, therefore seems to be that where one party has by his words or conduct made to the other a clear and unequivocal promise which is intended to create legal relations or affect a legal relationship to arise in the future, knowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go back upon it, if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties, and this would be so irrespective whether there is any pre-existing relationship between the parties or not. 9. It may be pointed out that in England the law has been well-settled for a long time, though there is some indication of a contrary trend to be found in recent juristic thinking in that country, that promissory estoppel cannot itself be the basis of an action. It cannot found a cause of action : it can only be a shield and not a sword. This narrow approach to a doctrine which is otherwise full of great potentialities is largely the result of an assumption, encouraged by it rather misleading nomenclature, that the doctrine is a branch of the law of estoppel. Since estoppel has always been traditionally a principle invoked by way of defence, the doctrine of promissory estoppel has also come to be identified as a measure of defence. The ghost of traditional estoppel continues to haunt this new doctrine and that is why we find that while boldly formulating and applying this new equity in the High Trees' case, Lord Denning added a qualification that though in the circumstances set out, the promise would undoubtedly be held by the courts to be binding on the party making it, notwithstanding that under the old common law it might be difficult to find any consideration for it. "the courts have not gone so far as to give a cause of action in damages for the breach of such a promise, but they have refused to allow the party making it to act inconsistently with it". "the courts have not gone so far as to give a cause of action in damages for the breach of such a promise, but they have refused to allow the party making it to act inconsistently with it". Lord Denning also pointed out in Combe v. Combe that "Much as I am inclined to favour the principles stated in the High Trees case, it is important that it should not be stretched too far, lest it should be endangered. That principle does not create new causes of action where none existed before. It only prevents a party from insisting upon his strict legal rights, when it would be unjust to allow him to enforce them, having regard to the dealings which have taken place between the parties......" So also said Buckley, J., in the more recent case of Beesly v. Hallwood Estates Ltd. "The doctrine may afford a defence against the enforcement or otherwise of enforceable rights : it cannot create a cause of action. It is, however, necessary to make it clear that though this doctrine has been called in various judgments and text books as promissory estoppel and it has been variously described as equitable estoppel', 'quasi estoppel' and 'new estoppel', it is not really based on the principle of estoppel, but it is a doctrine evolved by equity in order to prevent injustice where a promise is made by a person knowing that it would be acted on by the person to whom it is made and in fact it is so acted on and it is inequitable to allow the party making the promise to go back upon it. Lord Denning himself observed in the High Trees case, expressly making a distinction between ordinary estoppel and promissory estoppel that cases like the one before him were" not cases of estoppel in the strict sense. They are really promises, promises intended to be binding, intended to be acted upon and in fact acted upon". Jenkins, C.J. also pointed out in Municipal Corporation of Bombay v. Secretary of State that the "doctrine is often treated as one of estoppel but I doubt whether this is correct, though it may be a convenient name to apply". The doctrine of promissory estoppel need not, therefore, be inhibited by the same limitation as estoppel in the strict sense of the term. The doctrine of promissory estoppel need not, therefore, be inhibited by the same limitation as estoppel in the strict sense of the term. It is an equitable principle evolved by the courts for doing justice and there is no reason why it should be given only a limited application by way of defence. 10. It may be noted that even Lord Denning recognised in Crabb v. Arun District Council (supra) that "there are estoppels and estoppels. Some do give rise to a cause of action. Some don't" and added that "in the species of estoppel called 'proprietary estoppel', it does give rise to a cause of action" The learned Law Lord, after quoting what he had said in Moorgate Mercantile Co. Ltd. v. Twitchings namely that the effect of estoppel on the true owner may be that: his own title to the property, be it land or goods, has been held to be limited or extinguished, and new rights and interests have been created therein. And this operates by reason of his conduct-what he has led the other to believe-even though he never intended it. Proceeded to observe that "the new rights and interests, so created by estoppel, in or over land, will be protected by the courts and in this way give rise to a cause of action". The Court of Appeal in this case allowed Crabb a declaration of "a right of access at point over the verge on to Mill Park Road and a right of way along that road to Hook Lane" on the basis of an equity arising out of the conduct of the Arun District Council. Of course, Spencer Bower and Turner, in their Treatise on "The Law Relating to Estoppel by Representation have explained this decision on the basis that it is an instance of the application of the doctrine of estoppel by encouragement or acquiescence or what has now come to be known as proprietary estoppel which, according to the learned authors, forms an exception to the rule that estoppel cannot found a cause of action. But if we look at the judgments of Lord Denning and Scarman, L.J., it is apparent that they did not base their decision on any distinctive feature of proprietary estoppel but proceeded on the assumption that there was no distinction between promissory and proprietary estoppel so far as the problem before them was concerned. But if we look at the judgments of Lord Denning and Scarman, L.J., it is apparent that they did not base their decision on any distinctive feature of proprietary estoppel but proceeded on the assumption that there was no distinction between promissory and proprietary estoppel so far as the problem before them was concerned. Both the learned Law Lord and the learned Lord Justice applied the principle of promissory estoppel in giving relief to Crabb. Lord Denning, referring to what Lord Cairns had said in Hughes v. Metropolitan Railway Co. 10 a decision from which inspiration was drawn by him for evolving the doctrine of promissory estoppel in the High Tree's case, observed that " .......it is the first principle on which all courts of equity proceed......that it will prevent person from insisting on his strict legal rights-whether arising under a contract, or on his title deeds, or by statute-when it would be inequitable for him to do so having regard to the dealings which have taken place between the parties". The decision in the High Trees' case was also referred to the learned Law Lord and so also other cases supporting the doctrine of promissory estoppel. Scarman, L.J. also observed that in pursuing the inquiry as to whether there was an equity in favour of Crabb, he did not find helpful "the distinction between promissory and proprietary estoppel". He added that this "distinction may indeed be valuable to those who have to teach or expound the law, but I do not think that, in solving the particular problem raised by a particular case, putting the law into categories is of the slightest assistance". It does appear to us that this was a case decided on the principle of promissory estoppel. The representative of the Arun District Council clearly gave assurance to Crabb that they would give him access to the new road at point B to serve the southern portion of his land and the Arun District Council in fact constructed a gate at point B, and in the belief induced by this representation that he would have right of access to the new road at point B, Crabb agreed to sell the northern portion of his land without reserving for himself as owner of the southern portion any right of way over the northern portion for the purpose of access to the new road. This was the reason why the Court raised an equity in favour of Crabb and held that the equity would be satisfied by giving Crabb "the right of access at point B free of charge without paying anything for it". Arun District Council was held bound by its promise to provide Crabb access to the new road at point B and this promise was enforced against Arun District Council at the instance of Crabb. The case was one which fell within the category of promissory estoppel and it may be regarded as supporting the view that promissory estoppel can be the basis of a cause of action. It is possible that the case also came within the rule of proprietary estoppel enunciated by Lord Kingsdown in Ramsden v. Dyson: "The rule of law applicable to the case appears to me to be this : If a man, under a verbal agreement with a landlord for a certain interest in land, or what amounts to the same thing, under an expectation, created or encouraged by the landlord that he shall have a certain interest, takes possession of such land, with the consent of the landlord, and upon the faith of such promise or expectation, with the knowledge of the land lord, and without objection by him, lays out money upon the land, a Court of equity will compel the landlord to give effect to such promise or expectation." and Spencer Bower and Turner may be right in observing that that was perhaps the reason why it was held that the promise made by Arun District Council gave rise to a cause of action in favour of Crabb. But, on what principle, one may ask, is the distinction to be sustained between promissory estoppel and proprietary estoppel in the matter of enforcement by action. If proprietary estoppel can furnish a cause of action, why should promissory estoppel not?. There is no qualitative difference between the two. Both are the off- springs of equity and if equity is flexible enough to permit proprietary estoppel to be used as a cause of action, there is no reason in logic or principle why promissory estoppel should also not be available as a cause of action, if necessary to satisfy the equity. 11. Both are the off- springs of equity and if equity is flexible enough to permit proprietary estoppel to be used as a cause of action, there is no reason in logic or principle why promissory estoppel should also not be available as a cause of action, if necessary to satisfy the equity. 11. But perhaps the main reason why the English Courts have been reluctant to allow promissory estoppel to found a cause of action seems to be the apprehension that the doctrine of consideration would otherwise be completely displaced. There can be no doubt that the decision of Lord Denning in the High Trees' case represented a bold attempt to escape from the limitation imposed by the House of Lords in Jorden v. Money (supra) and it rediscovered an equity which was long embedded beneath the crust of the old decisions in Hughes v. Metropolitan Railway Co. (supra) and Birmingham and District Land Co. v. London and North Western Rail Co. (supra), and brought about a remarkable development in the law with a view to ensuring its approximation with justice, an ideal for which the law has been constantly striving. But it is interesting to note the Lord Denning was not prepared to go further, as he thought that having regard to the doctrine of consideration which was so deeply entrenched in the jurisprudence of the country, it might be unwise to extend promissory estoppel so as to found a cause of action and that is why he uttered a word of caution in Combe v. Combe (supra) that the principle of promissory estoppel "should not be stretched too far lest it should be endangered". The learned Law Lord proceeded to add Seeing that the principle never stands alone as giving a cause of action in itself, it can never do away with the necessity of consideration when that is an essential part of the cause of action. The learned Law Lord proceeded to add Seeing that the principle never stands alone as giving a cause of action in itself, it can never do away with the necessity of consideration when that is an essential part of the cause of action. The doctrine of consideration is too firmly fixed to be overthrown by a side wind." Spencer Bower and Turner also point out at page 384 of their Treatise (3rd ed) that it is difficult to see how in a case of promissory estoppel a promise can be used to found a cause of action without according to it operative contractual force and it is for this reason that "a contention that a promissory estoppel may be used to found a cause of action must be regarded as an attack on the doctrine of consideration." The learned authors have also observed at page 387 that "to give a plaintiff a cause of action on a promissory estoppel must be little less than to allow an action in contract where consideration is not shown" and that cannot be done because consideration "still remains a cardinal necessity of the formation of a contract." It can hardly be disputed that over the last three or four centuries the doctrine of consideration has come to occupy such a predominant position in the law of contract that under the English law it is impossible to think of a contract without consideration and, therefore, it is understandable that the English courts should have hesitated to push the doctrine of promissory estoppel to its logical conclusion and stopped short at allowing it to be used merely as a weapon of defence, though, as we shall point out, there are, quite a few cases where this doctrine has been used not as founding a cause of action in itself but as a part of a cause of a action. 12. The modern attitude towards the doctrine of consideration is, however, changing fast and there is considerable body of juristic thought which believes that this doctrine is "something of an anachronism". Prof. 12. The modern attitude towards the doctrine of consideration is, however, changing fast and there is considerable body of juristic thought which believes that this doctrine is "something of an anachronism". Prof. Holdsworth pointed out long ago in his History of English Law that the requirements of consideration in its present shape prevent the enforcement of many contracts, which ought to be enforced, if the law really wishes to give effect to the lawful intentions of the parties to them; and it would prevent the enforcement of many others, if the judges had not used their ingenuity to invest considerations. But the invention of considerations, by reasoning which is both devious and technical, adds to the difficulties of the doctrine". Lord Wright remarked in an article published in 49 Harvard Law Review, 1225 that the doctrine of consideration in its present form serves no practical purpose and ought to be abolished. Sir Federick Pollock also said in his well known work of Genius of Common Law', p. 91 that the application of the doctrine of consideration" to various unusual but not unknown cases has been made subtle and obscured by excessive dialectic refinement". Equally strong is the condemnation of this doctrine in judicial pronouncements. Lord Dunedin observed in the well known case of Dunlop Pneumatic Tyre Co. I confess that this case is to my mind apt to nip any budding affection which one might have had for the doctrine of consideration. For the effect of that doctrine in the present case is to make it possible for a person to snap his fingers at a bargain deliberately made, a bargain not in itself unfair, and which the person seeking to enforce it has a legitimate interest to enforce.". The doctrine of consideration has also received severe criticism at the hands of Dean Roscoe Pound in the United States. The reason is that promise as a social and economic institution becomes of the first importance in a commercial and industrial society and it is an expression of the moral sentiment of a civilised society that a man's word should be as good as his bond' and his fellow-men should be able to rely on the one equally with the other. That is why the Law Revision Committee in England in its Sixth Report made as far back as 1937 accepted Prof. That is why the Law Revision Committee in England in its Sixth Report made as far back as 1937 accepted Prof. Holdsworth's view and advocated that a contract should exist if it was intended to create or affect legal relations and either consideration was present or the contract was reduced to writing. This recommendation, however, did not fructify into law with the result that the present position remains what it was. But having regard to the general opprobrium to which the doctrine of consideration has been subjected by eminent jurists, we need not be unduly anxious to project this doctrine against assault or erosion nor allow it to dwarf or stultify the full development of the equity of promissory estoppel or inhibit or curtail its operational efficacy as a justice device for preventing injustice. It may be pointed out that the Law Commission of India in its 13th Report adopted the same approach and recommended that, by way of exception to section 25 of the Indian Contract Act, 1925, a promise, express or implied, which the promisor knows or reasonably should know, will be relied upon by the promisee, should be enforceable, if the promisee has altered his position to his detriment in reliance on the promise. We do not see any valid reason why promissory estoppel should not be allowed to found a cause of action where, in order to satisfy the equity, it is necessary to do so. 13. We may point out that even in England where the judges apprehending that if a cause of action is allowed to be founded on promissory estoppel it would considerably erode, if not completely overthrow, the doctrine of consideration, have been fearful to allow promissory estoppel to be used as a weapon of offence, it is interesting to find that promissory estoppel has not been confined to a purely defensive role. Lord Denning himself said in Combe v. Combe (supra) that promissory estoppel "may be a part of a. cause of action", though "not a cause of action itself. In fact there have been several cases where promissory estoppel has been successfully invoked by a party to support his cause of action, without actually founding his cause of action exclusively upon it. In fact there have been several cases where promissory estoppel has been successfully invoked by a party to support his cause of action, without actually founding his cause of action exclusively upon it. Two such cases are : Robertson v. Minister of Pensions (1) and Evenden v. Guildford City Association Football Club Ltd. The English courts have thus gone a step forward from the original position when promissory estoppel was regarded merely as a passive equity and allowed it to be used as a weapon of offence to a limited extent as a part of the cause of action, but still the doctrine of consideration continues to inhibit the judicial mind and that has thwarted the full development of this new equitable principle and the realisation of its vast potential as a juristic technique for doing justice. It is true that to allow promissory estoppel to found a cause of action would seriously dilute the principle which requires consideration to support a contractual obligation, but that is no reason why this new principle, which is a child of equity brought into the world with a view to promoting honesty and good faith and bringing law closer to justice should be held in fetters and not allowed to operate in all the activist magnitude, so that it may fulfil the purpose for which it was conceived and born. It must be remembered that law is not a mausoleum. It is not an antique to be taken down, dusted, admired and put back on the shelf. It is rather like an old vigorous tree, having its roots in history, yet continuously taking new grafts and putting out new sprouts and occasionally dropping dead wood. It is essentially a social process, the end product of which is justice and hence it must keep on growing and developing with changing social concepts and values. Otherwise, there will be estrangement between law and justice and law will cease to have legitimacy. It is true as pointed out by Mr. Justice Holmes, that continuity with the past is a historical necessity but it must also be remembered at the same time, as pointed out by Mr. Justice Cardozo that "conformity is not to be turned into a "fetish". We would do well to recall the famous words uttered by Mr. It is true as pointed out by Mr. Justice Holmes, that continuity with the past is a historical necessity but it must also be remembered at the same time, as pointed out by Mr. Justice Cardozo that "conformity is not to be turned into a "fetish". We would do well to recall the famous words uttered by Mr. Justice Cardozo while closing his first lecture on "Paradoxes' of Legal Science"; "The disparity between precedent and ethos may so lengthen with the years that only covin and chicanery would be disappointed if the separation were to end. There are many intermediate stages, mores, if inadequate to obliterate the past, may fix direction for the future. The evil precedent may live, but so sterilized and truncated as to have small capacity for harm. It will be prudently ignored when invoked as an apposite analogy in novel situations, though the novel element be small. There will be brought forward other analogies, less precise, it may be, but more apposite to the needs of morals. The weights are constantly- shifted to restore the equilibrium between precedent and justice." Was it not Lord Denning who exhorted judges not to be timorous sours but to be bold spirits, ready to allow a new cause of action if justice so required. (Candler v. Crane Christmas & Co.) 14. We may profitably consider at this stage what the American law on the subject is because in the United States the law has always shown a greater capacity for adjustment and growth than elsewhere. The doctrine of promissory estoppel has displayed remarkable vigour and vitality in the hands of American Judges and it is still rapidly developing and expanding in the United States. It may be pointed out that this development does not derive its origin in any way from the decision of Lord Denning in the High Trees' case but ante-dates this decision by a number of years; perhaps it is possible that it may have helped to inspire that decision. It may be pointed out that this development does not derive its origin in any way from the decision of Lord Denning in the High Trees' case but ante-dates this decision by a number of years; perhaps it is possible that it may have helped to inspire that decision. It was long before the decision in the High Trees' case that the American Law Institute's Restatement of the Law of Contract's came out with the following proposition in Article 90: "A promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee, and which does induce such action or forbearance, is binding if injustice can be avoided only by enforcement of the promise." This proposition was explained and elucidated by several illustrations given in the article and one of such illustrations was as follows: "A promises B to pay him an annuity during B's life. B thereupon resigns a profitable employment, as A expected that he might. B receives the annuity for some years, in the meantime becoming disqualified from again obtaining good employment. A's promise is binding." It is true that the Restatement has not the same weight, as a source of law, as actual decisions of courts of high standing, yet the principle set out in Article 90 has in fact formed the basis of a number of decisions in various states and it is now becoming increasingly clear that a promise may in the United States derive contractual enforceability if it has been made by the promisor intending that it would be acted on and the promisee has altered his position in reliance on it, notwithstanding that there is no consideration in the sense in which that word is used in English and Commonwealth jurisprudence. Of course the basic requirement for invoking this principle must be present namely, that the fact situation should be such that "injustice can be avoided only by enforcement of the promise". There are numerous examples of the application of this principle to he found in recent American decisions. There is, for instance, the long line of cases in which a promise to give a charitable subscription has been consistently held to be enforceable at the suit of the charity. There are numerous examples of the application of this principle to he found in recent American decisions. There is, for instance, the long line of cases in which a promise to give a charitable subscription has been consistently held to be enforceable at the suit of the charity. Though attempts have been made to justify these decisions by reasoning that the charity by commencing or continuing its charitable work after receiving promise has given good consideration for it, we do not think that, on closer scrutiny, the enforceability of the promise in these cases can be supported by spelling out the presence of some form of consideration and the true principle on which they are really based is the principle of promissory estoppel. This is also the view expressed in the following statement at page 657 of vol. 19 of American Jurisprudence: "A number of courts have upheld the validity of charitable subscriptions on the theory of promissory estoppel holding that while a mere promise to contribute is unenforceable for want of consideration, if money has been expended or liabilities have been incurred in reliance on the promise so that non fulfillment will cause injury to the payee, the donor is estopped to assert the lack of consideration, and the promise will be enforced." Chief Justice Cardozo, presiding over the Court of Appeals of the State of New York, explained the ratio of these decisions in the same terms in Alleghany College v. National Chauteuque County Bank: "The half-truths of one generation tend at times to perpetuate themselves in the law as the whole truths of another, when constant repetition brings it about that qualifications, taken once for granted, are disregarded or forgotten. The doctrine of consideration has not escaped the common lot. As far back as 1881, Judge Holmes in his lectures on the Common Law (p. 292) separated the detriment which is merely a consequence of the promise from the detriment, which is in truth the motive or inducement, and yet added that the courts 'have gone far in obliterating this distinction'. The tendency toward effacement has not lessened with the years. On the contrary there has grown up of recent days a doctrine that a substitute for consideration or an exception to its ordinary requirements can be found in what is styled a 'promissory estoppel'. Williston, Contract, Ss. 139, 116. The tendency toward effacement has not lessened with the years. On the contrary there has grown up of recent days a doctrine that a substitute for consideration or an exception to its ordinary requirements can be found in what is styled a 'promissory estoppel'. Williston, Contract, Ss. 139, 116. Whether the exception has made its way in this State to such an extent as to permit us to say that the general law of consideration has been modified accordingly, we do not now attempt to say. Cases such as 234 N.Y. 479 and 221 N. Y. 431 -may be signposts on the road. Certain at least it is that we have adopted the doctrine of promissory estoppel as the equivalent of consideration in connection with our law of charitable subscriptions. So long as those decisions stand, the question is not merely whether the enforcement of a charitable subscription can be squared with the doctrine of consideration in all its ancient rigor. The question may also be whether it can be squared with the doctrine of consideration as qualified by the doctrine of promissory estoppel". We have said that the cases in this State have recognized this exception, if exception it is thought to be. Thus, in 12 N.Y. 18 the subscription was made without request, express or implied that the church do anything on the faith of it. Later, the church did incur expense to the knowledge of the promisor, and in the reasonable belief that the promise would be kept. We held the promise binding, though consideration there was none except upon the theory of a promissory estoppel. In 74 N.Y. 72 a situation substantially the same became the basis for a like ruling. So in 103 N.Y. 600 and(1901) 167 N.Y. 96 the moulds of consideration as fixed by the old doctrine were subject to a like expansion. Very likely, conceptions of public policy have shaped, more or less subconsciously, the rulings thus made. Judges have been affected by the thought that 'defences of that character' are 'breaches of faith towards the public, and especially towards those engaged in the same enterprise, and an unwarrantable disappointment of the reasonable expectations of those interested'. W.F. Allen J. in 12 N.Y. 18 and of 97 Vt. 495 and cases there cited. The result speaks for itself irrespective of the motive. W.F. Allen J. in 12 N.Y. 18 and of 97 Vt. 495 and cases there cited. The result speaks for itself irrespective of the motive. Decisions which have stood so long, and which are supported by so many considerations of public policy and reason, will not be over-ruled to save the symmetry of a concept which itself came into our law, not so much from any reasoned conviction of its justice, as from historical accidents of practice and procedure. (8 Holdsworth, History of English Law, 7 et. seq). The concept survives as one of the distinctive features of our legal system. We have no thought to suggest that it is obsolete or on the way to be abandoned. As in the case of other concepts, however, the pressure of exceptions has led to irregularities of form." It is also interesting to note that the doctrine of promissory estoppel has been widely used in the United States in diverse other situations as founding a cause of action. The most notable instances are to be found in what may be called the "sub-contractor bid cases" in which a contractor about to tender for a contract, invites a sub- contractor to submit a bid for a subcontract and after receiving his bid the contractor submits a tender. In such cases, the subcontractor has been held unable to retract his bid and be liable in damages if he does so. It is not possible to say that any detriment which the contractor may be able to show in these cases would amount to consideration in its strict sense and these decisions have plainly been reached on an application of the doctrine of promissory estoppel. One of such cases was Drennan v. Star Paving Company where Traynor, J. explicitly adopted as good law the text of Article 90 of the Restatement of the law of Contracts quoted above and stated in so many words that "the absence of consideration is not fatal to the enforcement of such a promise". There are also numerous cases where the doctrine of promissory estoppel has been applied against the Government where the interest of justice, morality and common fairness clearly dictated such a course. We shall refer to these cases when we discuss the applicability of the doctrine of equitable estoppel against the Government. There are also numerous cases where the doctrine of promissory estoppel has been applied against the Government where the interest of justice, morality and common fairness clearly dictated such a course. We shall refer to these cases when we discuss the applicability of the doctrine of equitable estoppel against the Government. Suffice it to state for the present that the doctrine of promissory estoppel has been taken much further in the United States than in English and Commonwealth jurisdictions and in some States at least, it has been used to reduce, if not to destroy, the prestige of consideration as an essential of valid contract. Vide Spencer Bower and Turner's Estoppel by Representation (2d) page 358. 15. We now go on to consider whether and if so to what extent is the doctrine of promissory estoppel applicable against the Government. So far as the law in English is concerned, the position cannot be said to be very clear. Rowlett J., in an early decision in Rederiaktiebolaget Amphitrite v. The King held that an undertaking given by the British Government to certain neutral ship owners during the First World War that if the shipowners sent a particular ship to the United Kingdom with a specified cargo, she shall not be detained, was not enforceable against the British Government in a court of law and observed that his main reason for taking this view was that: "--it is not competent for the Government to fetter its future executive action, which must necessarily be determined by the needs of the community when the question arises. It cannot by contract hamper its freedom of action in matters which concern the welfare of the State." This observation has however not been regarded by jurists as laying down the correct law on the subject since it is "very wide and it is difficult to determine its proper scope". Anson's English Law of Contract, 22d. 174. The doctrine of executive necessity propounded by Rowlatt, J., was in fact disapproved by Denning, J., as he then was, in Roberston v. Minister of Pensions (supra) where the learned Judge said: The Crown cannot escape by saying that estoppels do not bind the Crown for that doctrine has long been exploded. Anson's English Law of Contract, 22d. 174. The doctrine of executive necessity propounded by Rowlatt, J., was in fact disapproved by Denning, J., as he then was, in Roberston v. Minister of Pensions (supra) where the learned Judge said: The Crown cannot escape by saying that estoppels do not bind the Crown for that doctrine has long been exploded. Nor can the Crown escape by praying in aid the doctrine of executive necessity, that is, the doctrine that the Crown cannot bind itself so as to fetter its future executive action. That doctrine was propounded by Rowlatt, J., in Rederiaktiebolaget Amphitrite v. The King but it was unnecessary for the decision because the statement there was not a promise which was intended to be binding but only an expression of intention. Rowlatt, J., seems to have been influenced by the cases on the right of the Crown to dismiss its servants at pleasure, but those cases must now all be read in the light of the judgment of Lord Atkin in Reily v. The King. In my opinion the defence of executive necessity is of limited scope. It only avails the Crown where there is an implied term to that effect or that is the true meaning of the contract." It is true that the decision of Denning J., in this case was overruled by the House of Lords in Howell v. Falmouth Boat Construction Co. Ltd. but that was on the ground that the doctrine of promissory estoppel cannot be invoked to "bar the Crown from enforcing a statutory prohibition or entitle the subject to maintain that there has been no breach of it". The decision of the House of Lords did not express any disapproval of the applicability of the doctrine of promissory estoppel against the Crown nor did it overrule the view taken by Denning J., that the Crown cannot escape its obligation under the doctrine of promissory estoppel by "praying in aid the doctrine of executive necessity." The statement of the law by Denning, J., may, therefore, still be regarded as holding the field and it may be taken to be a judicially favoured view that the Crown is not immune from liability under the doctrine of promissory estoppels".' (3) State of Punjab v. Nestle India Ltd. (Ruma Pal, J), reported in (2004) 6 SCC 465 , Para-28. 28. 28. This Court rejected all the three pleas of the Government. It reiterated the wellknown preconditions for the operation of the doctrine: (1) a clear and unequivocal promise knowing and intending that it would be acted upon by the promisee; (2) such acting upon the promise by the promise so that it would be inequitable to allow the promisor to go back on the promise. 16. The learned Sr. Addl. Advocate General, Nagaland, Mr. K. Sema who appeared on behalf of the respondents No. 1 to 5 submitted as follows; (i) That the petitioner have not challenged the officiating promotion order of himself and the private respondents, therefore, it would not be legally permissible for him to challenge his and their regularisation orders since the same are based on the former. The learned Sr. Addl. Advocate General, Nagaland, submitted that because the recommendation of the DPC held for their regularisation and recommendation of the review DPCs held thereafter and the consequent orders issued were based consistently on the dates on which officiating appointments were given effect to, it is futile to challenge the later without challenging the former. (ii) The learned Sr. Addl. Advocate General also submitted that the first notification notifying regularisation of the petitioner in the post of Hydrologist being Notification No. IRR/ESTT/12/2003, dated 22.12.2004, had the effective date as 27.11.2003. However, the same was changed to 03.09.2004 by the Notification No. IRR/ESTT/12/2003, dated 13.05.2005. This was done because the petitioner could not have been regularised w.e.f 27.11.2003, when the post of Hydrologist have not even been created or in existence. As such, regularisation of his service to the post of Hydrologist was given as 03.09.2004 i.e. the date on which the post of Hydrologist was notified. This was maximum the Government respondents could have done. Taking into account the circumstances on which the petitioner was brought to the department of Soil & Water Conservation from his original department of Irrigation & Flood Control, he has been given the maximum benefit as far as it is possible, therefore, the petitioner could not have asked for more. (iii) That while the seniority position was maintained the date of regularisation of the petitioner and the two private respondents No. 6 & 7 remained the same and the same has not been challenged by the petitioner and that has remained as such throughout. (iii) That while the seniority position was maintained the date of regularisation of the petitioner and the two private respondents No. 6 & 7 remained the same and the same has not been challenged by the petitioner and that has remained as such throughout. That on the request of the petitioner review DPCs have been held but review DPCs have consistently maintained the date of regularisation of the petitioner and that of the respondents No. 6 & 7, therefore, the impugned notification issued in pursuant to the recommendation of the DPCs does not suffer from any infirmity. In case this Court deems necessary a fresh DPC may be ordered to review or to reconsider the same. In support of his submission, the learned counsel cited the decision of the Hon'ble Supreme Court in the case of Union of India & Ors. v. S.R Nayyar, reported in (2014) 14 SCC 370 . Para-11 & 15 of the judgment which were particularly relied upon by the learned counsel are reproduced here below; "11. It is settled that the High Court under Article 226 of the Constitution of India cannot sit in appeal over the assessment made by the DPC. If the assessment made by the DPC is perverse or is not based on record or proper record has not been considered by the DPC, it is always open to the High Court under Article 226 of the Constitution to remit the matter back to the DPC for recommendation, but the High Court cannot assess the merit on its own on perusal of the service record of one or the other employee. 15. It is also settled that the High Court under Article 226 can remit the matter for reconsideration if a person was not properly considered for a promotion for which he was eligible. But it cannot direct to promote a person to the higher post, without giving a plausible ground." 17. Mr. R. Iralu, learned Sr. 15. It is also settled that the High Court under Article 226 can remit the matter for reconsideration if a person was not properly considered for a promotion for which he was eligible. But it cannot direct to promote a person to the higher post, without giving a plausible ground." 17. Mr. R. Iralu, learned Sr. counsel who appeared on behalf of the respondents No. 6 & 7 submitted as follows; (i) That the Notification No. IRR-13/6/88, dated 06.12.1998 (at Annexure-3), Notification No. IRR, OM-5/9, dated 04.11.1997 (at Annexure-5), Notification No. IRR/ESTT/53/93, dated 13.11.1997 (at Annexure-6) and Notification No. Soil- 9/87/G (Pt), dated 06.01.1998 (at Armexure-7) of the writ petition had consistently maintained that fixation of inter-se seniority of officers of Engineers from Engineering wing of different departments after order of amalgamation shall be determined on the recommendation made by expert committee constituted for the purpose. However, till today no such recommendation has been made by expert committee so constituted. Therefore, seniority of the petitioner and the respondents No. 6 & 7 in the department of Soil & Water Conservation department cannot be determined at the moment. (ii) That the so called agreement relied upon by the petitioner did not involve the Government, therefore, there cannot be a legally enforceable agreement in regard to determination of seniority between the petitioner and the respondents No. 6 & 7. That an agreement to have effect of waiver and estoppels must be legally valid but the agreement in question is not a valid agreement, therefore, it cannot confer the petitioner the right to claim waiver and estoppel against the respondents No. 6 & 7 and the Government respondents. (iii) That the post of Hydrologist has certain requisite qualification but the DPC without examining whether the petitioner possess such qualification or not had recommended for his regularisation, therefore, the proceedings of the DPC and the notifications issued in pursuant thereto are most likely to be unsustainable in law. (iv) That once a person is appointed or promoted to a post he is governed by the service rule, therefore the so called agreement relied upon by the petitioner cannot superced such service rule. (v) That the petitioner had not challenge the notifications or circulars wherein his date of regularisation and the date of regularisation of two private respondents No. 6 & 7 were given, therefore, the petition is not maintainable. (v) That the petitioner had not challenge the notifications or circulars wherein his date of regularisation and the date of regularisation of two private respondents No. 6 & 7 were given, therefore, the petition is not maintainable. That the first regularisation notification of the petitioner wherein the date of his regularisation in the post of Hydrologist was given as 28.11.2003 was replaced by the second notification dated 13.05.2003 wherein the effective date of his regularisation in the post of Hydrologist was given as 03.09.2004 and the same has never been challenged by the petitioner, therefore, his petition is not maintainable. 18. Mr. I. Longjem, learned counsel who appeared on behalf of the respondent No. 4/NPSC submitted as follows: That the last review DPC held on 29.03.2016 had recommended the date on which the post of Hydrologist came into existence as the date on which regularisation of the petitioner to the post of Hydrologist should be given effect to and by Notification No. IRR/ESTT-36/92, dated 31.03.2016, the same has been notified. This is the best that can ever be done for the petitioner and there is nothing more that can be done than this. Because the petitioner could have never been regularised prior to the date on which the post came into existence. The learned counsel in support of his submission cited the judgment of the Hon'ble Supreme Court passed in the case of State of Uttaranchal & Anr. v. Dinesh Kumar Sharma, reported in (2007) 1 SCC 683 , para-28 and 29. The contents of the two paragraphs shall be reproduced at the relevant stage of this judgment later. The learned counsel also cited the case of L. Chandra Kishore Singh v. State of Manipur & Ors, particularly para-14 & 15 of the judgment as reported in (1999) 8 SCC "14. Seniority itself based upon length of service is an acquired right of an employee which entitles him to be considered for further promotion. It is generally regulated by service rule. Such rule normally provides for determined seniority with reference to the date of appointment to the class, category and grade to which the appointment is made. It is determined only on the basis of length of service. It is generally regulated by service rule. Such rule normally provides for determined seniority with reference to the date of appointment to the class, category and grade to which the appointment is made. It is determined only on the basis of length of service. Such length of service may be on the difference of substantive appointment in the cadre or grade of service which may be reckoned from the date of confirmation on the basis of regularisation. 15. It is now well settle that even in cases of probation or officiating appointments which are followed by a confirmation unless a contrary rule is shown. The service rendered as officiating appointment or on probation cannot be ignored reckoning the length of continuous officiating service for determining the place in the seniority list. Where the first appointment is made by not following the prescribed procedure and such appointee is approved later on, the approval would mean his confirmation by the authority and shall relate back to the date on which his appointment was made and the entire service will have to be computed in reckoning the seniority according to the length of continuous officiation. In the regard we fortify our view by the judgment of this Court in G.P. Doval V. Chief Secy. Govt. of U.P. Lastly, the learned counsel cited the case of the Kaushal Kishore Singh Vs. Dy. Director of Education & Ors., particularly, para-5 of the judgment as reported in (2002) 9 SCC 634 . The same is reproduced here below; "5. The claim of seniority of the employee is always determined in any particular Grade or Cadre and it is not the law that seniority in one Grade or Cadre would be dependent on the seniority in other Grade or Cadre. It is no doubt true that the appellant has been held to be senior to respondent No. 4 in LT Grade by virtue of determination made by the Deputy Director of Education by his order dated 18.7.1994. But at the same time the Managing Committee in accordance with the provisions of the relevant regulation promoted the respondent No. 4 to the post of Lecturer by the so-called Resolution dated 1.8.1991 which appears to have been approved by the District Inspector of Schools on 10.4.1991. But at the same time the Managing Committee in accordance with the provisions of the relevant regulation promoted the respondent No. 4 to the post of Lecturer by the so-called Resolution dated 1.8.1991 which appears to have been approved by the District Inspector of Schools on 10.4.1991. The so-called approval made by the Deputy Inspector of Schools has not been annulled by any higher competent authority under the Act or the Regulation nor any Court in an appropriate proceedings has annulled the same. Therefore, the rights of respondent No. 4 in the promoted post of Lecturer as well as subsequent post of Principal cannot be annulled by virtue of determination of seniority inter se between the appellant and respondent No. 4 in the LT Grade. Needless to mention the contention of the appellant that the Resolution of the Managing Committee was ante-dated cannot be gone into in this proceedings and this can only be gone into either by a higher authority under the Act or Regulation or in any duly constituted proceedings before any appropriate Forum. In that view of the matter, notwithstanding the determination of seniority of the appellant over respondent No. 4 in the LT Grade by the order of the) Deputy Director dated 18.7.1994, the so-called appointment of the respondent No. 4 to the post of Lecturer as well as to the subsequent post of Principal cannot be in any way affected by any order passed in this proceedings. While we agree that any observation made by the High Court in the impugned judgment will not affect the rights of the present appellant but at the same time the appointment of the respondent No. 4 to the post of Lecturer as well as to the post of Principal shall remain unaffected unless and until it is annulled by any competent authority in accordance with law. We make it clear by this order of ours, we are not approving the legality of the appointment of respondent No. 4 to the post of Lecturer or to the post of Principal". 19. Mr. We make it clear by this order of ours, we are not approving the legality of the appointment of respondent No. 4 to the post of Lecturer or to the post of Principal". 19. Mr. Limawapang, learned counsel for the respondent No. 8/Association of Engineers submitted that the fact that there was an agreement signed between the parties, through the intervention of the Association and as per that agreement the subsequent O.Ms and Notifications concerning the date of regularisation of the petitioner to the post of Hydrologist and the respondents No. 6 & 7 to the post of Executive Engineer have been issued the Association has nothing more to say. 20. Mr. Taka Masa, learned Sr. counsel for the petitioner in reply to the submission of the learned counsels for the respondents submitted in brief that the petitioner did not challenge the officiating promotion order of his service to the post of Hydrologist and that of the respondents No. 6 & 7 to the post of Executive Engineer because he was constantly shown as senior to them all along in the seniority list published by the concerned authority. 21. From the submissions of the learned counsels representing the parties it has come to light that certain issues needs to be decided to come to the conclusion as to whether the prayers of the petitioner can be granted or not. The issues are being discussed and determine one after the other here below; (i) Whether or not the petitioner who was brought to the department of Irrigation & Flood Control from his original department i.e. department of Soil & Water Conservation in pursuant to State Governments' Policy which amalgamated all the Engineering Cells of all departments. could have been rightly treated as senior to the respondents No. 6 & 7 whose appointment dates were later than his date of appointment at the level of SDO in the department. could have been rightly treated as senior to the respondents No. 6 & 7 whose appointment dates were later than his date of appointment at the level of SDO in the department. There is no dispute as to the fact that the petitioner was brought to the department of Irrigation & Flood Control along with his post i.e. Assistant Soil Conservation Officer (Engineering) equivalent to the post of SDO (Engineering) in the department of Irrigation & Flood Control as per the amalgamation policy of the State Government notified by the department of P&AR vide Notification No. AR- 13/6/88, dated Kohima, 6th December, 1988 and the notification issued by the same department being Notification No. AR-O& M- 5/90, dated 04.11.1997 and the subsequent Notifications being No. IRR/ESTT-53/93, dated 13.11.1997, issued by the Irrigation & Flood Control department and No. SOIL-9/87/G (Pt), dated 06.01.1998, issued by Soil & Water Conservation department (reproduced at page-2, 3, & 4 of this judgment). The Notification No. AR-13/6/88, dated 06.12.1988, issued by the department of P &AR (Administrative Reform Branch) is reproduced here below; - "Government of Nagaland Department of Personnel and Administrative Reforms (Administrative Reforms Branch) Notification No.AR-13/6/88/ Dated, Kohima, the 6th Dec'88. On the recommendation of the Expert Committee appointed by the Government vide Notification No. CON-51/86 dated 5.9.1986 and NO- CON-51/86 dated 17.12.1986, the Governor of Nagaland is pleased to order amalgamation of all Engineering Wings attached to various Government Departments of Nagaland, except the Departments of Nagaland State Transport, Geology and Mining and Agriculture into on Department namely works and Housing Department with effect from 1.4.1989. Consequent upon the amalgamation as ordered above, the Governor of Nagaland is also pleased to order that all the posts of the Engineering wings in the various Departments shall form a combined cadre with respective cadre posts in the Engineering Service of the Works & Housing Department with effect from the date of amalgamation. The Governor is further pleased to order that the incumbents holding the posts which have now been encadred shall be deemed to have been duly appointed to various posts in the different cadres in the Engineering Service. Placement of officers and staff, fixation of their inter-se seniority procedure for execution of civil works etc. will be as recommended by the Experts Committee and be notified by the Works and Housing Department separately. Sd/- Z. Obed Chief Secretary to the Government of Nagaland". Placement of officers and staff, fixation of their inter-se seniority procedure for execution of civil works etc. will be as recommended by the Experts Committee and be notified by the Works and Housing Department separately. Sd/- Z. Obed Chief Secretary to the Government of Nagaland". Reading together of the above notifications and the notification issued pursuant thereto (given above) would show that after the amalgamation become effective the post which were amalgamated were to form one cadre and inter se seniority of the persons occupying such post was to be as recommended by the expert committee. However, there is nothing in record to show that such expert committee have ever made any recommendation to that effect, at least it is not brought to this Court's notice. In fact only Mr. R. Iralu, learned Sr. counsel who appeared on behalf of the respondents No. 6 & 7 mentioned that such expert opinion report is not there till today. In the absence of such expert recommendation one has to decide on the established principles of fixing seniority. The general principle of fixing seniority are; (a) if the members of the cadre were recruited through one recruitment examination seniority will be determined based on the merit list, (b) if the merit list of two or more persons are same seniority will be decided on the basis of their age, giving precedence to the person who is older by age. In this case, the petitioner and the private respondents were appointed through different recruitment process to different post, therefore, determination of their seniority by virtue of their standing in the merit list and their personal age is out of the question. As such, the only way to determine their seniority was by the date of their entry to their respective service. Perhaps it was based on the date of entry into service that the department of Irrigation & Flood Control, issued Notification No. IRR/ESTT/53/93 (Pt), dated 11.8.1998, wherein the petitioner's seniority at the level of SDO in the department was placed above the two private respondents No. 6 & 7. From the record, it has been ascertain that the petitioner was appointed to the post of Assistant Soil Conservation Officer on 21.02.1989 on the recommendation of the NPSC and respondents No. 6 & 7 were appointed on 06.03.1990 to the post of SDO (IRR) in the department of Irrigation & Flood Control. From the record, it has been ascertain that the petitioner was appointed to the post of Assistant Soil Conservation Officer on 21.02.1989 on the recommendation of the NPSC and respondents No. 6 & 7 were appointed on 06.03.1990 to the post of SDO (IRR) in the department of Irrigation & Flood Control. The date of appointment of the petitioner and the two private respondents No. 6 & 7 are not disputed, therefore, it is clear that the petitioner was appointed earlier than the respondents No. 6 & 7. Taking these into account and also taking into account the fact that on the date of amalgamation of the two services into one cadre they have become one cadre, therefore, was only reasonable that the one who entered service earlier in time should have been placed in the position of senior to the ones who entered into service later. I have no hesitation in holding that in the absence of recommendation of such report committee and in the absence of any rule on such matter the department of Irrigation & Flood Control was right in placing the petitioner above the two private respondents No. 6 & 7 in the seniority list published vide Notification No. IRR/ESTT/53/93 (Pt), dated 11.08.1998, as far as entry level of the service/cadre is concerned. It may also be added that since notification was never challenge the same has attend its finality. (ii) The second issue that needs to be determined is whether regularisation of the promotion of the petitioner to the post of Hydrologist and the promotion of the private respondents No. 6 & 7 to the post of Executive Engineer with retrospective effect can be held valid in the eye of law? The principle of law involved in this issue is no longer rest-integra because of the decisions rendered by the Hon'ble Supreme Court in catena of cases. The case cited by Mr. I. Longjem who appeared on behalf of the respondent No. 4 is one of them. The Hon'ble Supreme Court in that case had held that and employee can get promotion and seniority only from the time he has been substantially appointed or promoted. The relevant paragraphs of the judgment passed in State of Uttaranchal & Anr. v. Dinesh Kumar Sharma, reported in (2007) 1 SCC 683 , para-28 and 29 are reproduced here below:- "28. The Hon'ble Supreme Court in that case had held that and employee can get promotion and seniority only from the time he has been substantially appointed or promoted. The relevant paragraphs of the judgment passed in State of Uttaranchal & Anr. v. Dinesh Kumar Sharma, reported in (2007) 1 SCC 683 , para-28 and 29 are reproduced here below:- "28. It is clear from the above that a person appointed on promotion shall not get seniority of any earlier year but shall get the seniority of the year in which his/her appointment is made. Therefore, in the present fact situation the respondent cannot claim promotion from the date of occurrence of the vacancy which is 1995-96 but can only get promotion and seniority from the time he has been substantively appointed i.e. from 1999. Likewise, the seniority also will be counted against the promotion/appointment in the cadre from the date of issuance of order of substantive appointment in the said cadre i.e. from 19.11.1999. 29. In a recent judgment of this Court in Uttaranhal Forest Rangers' Assn. (Direct Recruit) v. State of U.P. (Dr. Ar. Lakshmanan and Tarun Chatterjee, JJ), this Court was of the view that seniority has to be decided on the basis of rules in force on the date of appointment, no retrospective promotion or seniority can be granted from a date when an employee has not even been borne in the cadre. Similar view was taken by this Court in Keshav Chandra Joshi v. Union of India". I may also add here one more judgment of the Hon'ble Supreme Court in which the same principle of law was followed. Uttaranchal Forest Rangers 'Assn. (Direct Recruit) & Ors. v. State of U.P. & Ors., reported in (2006) 10 SCC 346 . Similar view was taken by this Court in Keshav Chandra Joshi v. Union of India". I may also add here one more judgment of the Hon'ble Supreme Court in which the same principle of law was followed. Uttaranchal Forest Rangers 'Assn. (Direct Recruit) & Ors. v. State of U.P. & Ors., reported in (2006) 10 SCC 346 . The relevant portion is reproduced here below: "This Court has consistently held that no retrospective promotion can be granted nor any seniority can be given on retrospective basis from a date when an employee has not even been borne in the cadre particularly when this would adversely affect the direct recruits who have been appointed validly in the meantime." From the impugned proceeding of the DPC held on 17.06.2015 which recommended regularisation of the officiating promotion of the petitioner to the post of Hydrologist and the officiating promotion of the private respondents No. 6 & 7, it is clear that officiating promotion of the three officers were recommended for regularisation from the date on which the orders of their officiating promotion were issued. It is also clear from the contents of the Notification No. IRR/ESTT- 36/92, dated 29.06.2015, (which is also impugned herein). In view of the principle of law which was enunciated and consistently followed by the Hon'ble Supreme Court. The recommendation of the DPC and the notification issued in pursuant thereto cannot be valid in the eye of law, as such, cannot be upheld. Accordingly, the final combined seniority list circulated by the department of Irrigation & Flood Control, vide Circular No. IRR/ESTT-3/88/241, dated 17.07.2015, also cannot be a valid seniority list. For the same reasons stated above the recommendation of the review DPC held on 29.03.2016 which recommended regularisation of the promotion of the petitioner to the post of Hydrologist/Executive Engineer w.e.f. 3.9.2004 i.e. the date on which creation of the post of Hydrologist was modified and the Notification No. IRR/ESTT- 36/92, dated 31.3.2016, (which are impugned herein) issued in pursuant thereto also cannot be legally valid and as such, cannot be upheld. In view of the above discussions and conclusions drawn, the writ petition is allowed and the impugned DPC proceedings, notifications, seniority list are quashed and set aside. In view of the above discussions and conclusions drawn, the writ petition is allowed and the impugned DPC proceedings, notifications, seniority list are quashed and set aside. The respondents shall constitute a special DPC to examine/consider and determine the date on which the petitioner and the private respondents No. 6 & 7 should be substantially promoted to the post of Hydrologist and Executive Engineer respectively and also determine their inter se seniority based on merit, other relevant factors as per rule and keeping in view the peculiar facts and circumstances under which they have been amalgamated/merged together into a cadre and the facts and circumstances that followed. The respondents shall do the needful at the earliest but not later than a period of 3(three) months from the date of receipt of a copy of this order. Petition Allowed