JUDGMENT : Tashi Rabstan, J. Through the medium of this writ petition, the petitioners are seeking to quash Advertisement Notice No. 1 of 2006, dated 02.02.2006 issued by J&K Service Selection Board, respondent No. 1 herein, whereby, amongst other posts, nine posts of Drivers have been advertised for selection. Petitioners are also seeking a direction to the respondents to treat them to have been appointed as Drivers against the vacant posts with all consequential benefits. 2. The facts in brief, as stated in the petition, are that petitioner No. 1 was appointed as Driver on daily wage basis in the Agriculture Department in August 1991 and, subsequently, in terms of SRO 64 of 1994, his services came to be regularized as Helper vide Govt. Order No. 3/E of 2003, dated 25.05.2003 w.e.f. 01.04.1999. It is averred that ever since he was engaged on daily wage basis and even after regularization of his services till the filing of present petition, he has been discharging the duties of a Driver. 3. It is averred that petitioner No. 2 was also appointed as a Driver on daily wage basis on 01.03.1991 and has been performing the duties of a Driver, however, despite completion of more than an seven years of service he has not been regularized. 4. It is averred that petitioner No. 3 was appointed as a Driver on daily wage basis on 29.02.1992 and, subsequently, his services came to be regularized as Helper vide Govt. Order No. 53-E of 2003 with effect from 01.04.2001. It is averred that ever since he was engaged on daily wage basis and even after regularization of his services till the filing of present petition, he has been discharging the duties of a Driver. 5. Similarly, it is averred that initially petitioner No. 4 was appointed as a Mali on daily wage basis with effect from 01.01.1993, subsequently in August, 1995 he was assigned the duties of a Driver. It is averred that though his case for regularization has been processed and completed, however, formal order of regularization has not been issued. It is averred that he has been performing his duties as a Driver since August 1995. 6. Petitioner No. 5 was appointed as a Driver on daily wage basis on 31.03.1989 and, subsequently, his services came to be regularized as a Peon vide order dated 01.01.1998 with effect from 01.04.1996. It is averred that he has been performing his duties as a Driver since August 1995. 6. Petitioner No. 5 was appointed as a Driver on daily wage basis on 31.03.1989 and, subsequently, his services came to be regularized as a Peon vide order dated 01.01.1998 with effect from 01.04.1996. It is averred that he never performed the duties of a Peon rather ever since he was engaged on daily wage basis and even after regularization of his services till the filing of present petition, he has been discharging the duties of a Driver. 7. Petitioner No. 6 was appointed as a Driver on daily wage basis in May, 1987 and, subsequently, his services came to be regularized vide order dated 01.04.1995 with effect from 01.04.1994 as a Helper. It is averred that ever since he was engaged on daily wage basis and even after regularization of his services till the filing of present petition, he has been discharging the duties of a Driver. 8. Petitioner No. 7 was appointed on daily wage basis in January, 1989 and, subsequently, his services came to be regularized vide order dated 01.01.1998 with effect from 01.04.1996 as a Helper. It is averred that from the year 1994 he has been serving the department as a Driver and since then he never performed the duties of a Helper. 9. It is averred that three persons, namely, Dev Raj, Ranga Ram and Ramesh Chander, were also appointed as Drivers on daily wage basis in the Agriculture Department in 1987, 1990 and 1988 respectively. When they were not regularized as Drivers, they filed SWP No. 397/1991, which came to be allowed vide judgment and order dated 04.09.1991 with a direction to the respondents to consider them for regularization as Drivers against available vacancies and till that is done, they were directed to be paid wages at the rate equivalent to the minimum pay in the pay scale of regularly appointed drivers in the department. State questioned the said judgment in appeal being LPA No. 142/2001 which came to be dismissed vide order dated 09.07.1993. Thereafter, respondent-State filed SLP before the Supreme Court, which too met with the same fate on 17.01.1994. 10. State questioned the said judgment in appeal being LPA No. 142/2001 which came to be dismissed vide order dated 09.07.1993. Thereafter, respondent-State filed SLP before the Supreme Court, which too met with the same fate on 17.01.1994. 10. It is averred that when despite dismissal of SLP, respondent-State did not regularize the services of said three persons as Drivers, they again filed SWP No. 315/2001, which came to be allowed on 13.12.2005 with a direction to the respondents therein that they have no option but to implement the directions passed by the Court. 11. The grievance of petitioners is that they are also similarly situated to that of these three persons, therefore, they are also entitled to be regularized as Drivers either from the date they completed seven years of continuous service against the post of Drivers, or, from the date their services came to be regularized as Helpers/Peon. It is averred that petitioner No. 1 herein also filed SWP No. 1697/1997 and petitioners 2 to 4 filed SWP No. 1735/1997 claiming regularization of their services against the post of Driver on the same analogy respondents 4 to 7 therein, namely, Ashwani Kumar Sharma, Prithpal Singh, Surjeet Singh and Bodh Raj came to be appointed as such on regular basis in the Agriculture Department. Both these petitions came to be disposed of on 24.04.2000 and 27.04.2000 respectively with a direction to the respondents therein to consider the case of petitioners for regularization of their services in the light of judgment passed in SWP No. 397/91 decided on 04.09.1991. Further, it is averred that the petitioners were given assurance by the official respondents that as and when the directions passed in SWP No. 397/91 will be implemented, they would also be granted the same relief. 12. It is averred that instead of considering the case of petitioners for regularization of their services as Drivers in terms of the directions passed by this Court, respondents 1 to 3 herein referred nine posts of Drivers in the Agriculture Department to the Service Selection Board for making selection. Petitioners, compelled by the circumstances made a representation to the Director Agriculture Jammu, respondent No. 3 who vide communication dated 28.01.2006 recommended to Financial Commissioner, Agriculture Production Department for withdrawing these posts from Service Selection Board and promoting/posting the petitioners against such posts. Petitioners, compelled by the circumstances made a representation to the Director Agriculture Jammu, respondent No. 3 who vide communication dated 28.01.2006 recommended to Financial Commissioner, Agriculture Production Department for withdrawing these posts from Service Selection Board and promoting/posting the petitioners against such posts. Further, it is averred that instead of considering the petitioners against the said posts, respondent No. 4 issued Advertisement Notice No. 1 of 2006, dated 02.02.2006, impugned herein, whereby, amongst other posts, nine posts of Drivers came to be advertised for selection in the Agriculture Department of Jammu Province in the pay scale of 4000-6000. Hence, the present writ petition. 13. Objections have been filed on behalf of respondents. In the objections filed on behalf of respondents 1 to 3, it is admitted that nine posts of drivers were referred to Service Selection Board for direct recruitment. It is averred that Government of Jammu and Kashmir, Agriculture Production Department vide Notification dated 02.01.2004 issued SRO 02 thereby framing rules called Jammu and Kashmir Agriculture (Subordinate) Services Recruitment Rules, 2004 and in terms of Schedule-II attached thereto, the posts of Drivers are to be filled by Direct Recruitment. Thus, it is averred that petitioner cannot be adjusted against the post or Drivers in violation of the rules. Further, it is averred that in terms of SRO 64 of 1994 the services of petitioners are to be regularized against Class-IV post only, i.e., helpers/peons. 14. In the objections filed on behalf of respondent No. 4, it is averred that the Service Selection Board is within its right to proceed with the selection process once the specific requisition from the intending department is received. Further, it is averred that under J&K Subordinate Services Recruitment Rules, 1992, any appointment to the non-gazetted posts including the posts of drivers by direct recruitment can only be made on the recommendations of Service Selection Board after holding proper selection process in accordance with law and any other mode for direct recruitment is contrary to the rules. It is further averred that respondents 1 to 3 are not empowered to make appointments of drivers by direct recruitment even by adopting the mode of regularization. 15. It is further averred that respondents 1 to 3 are not empowered to make appointments of drivers by direct recruitment even by adopting the mode of regularization. 15. While contradicting the stand taken by the official respondents, petitioners in their supplementary affidavit have averred that Dev Raj, Ranga Ram and Ramesh Chander who were also appointed as Drivers on daily wage basis in the Agriculture Department in 1987, 1990 and 1988 respectively, came to be adjusted as Drivers vide Govt. Order No. 37-Agri of 2008, dated 20.02.2008. Further, it is averred that one Darshan Lal, who was holding the post of Mali with effect from 1992 was allowed to perform the duties of Truck Driver and, subsequently, vide Order No. 392/E of 2009, dated 03.12.2009, he came to be promoted as Driver Grade-II with effect from 29.05.1997 and Driver Grade-I with effect from 29.05.2002. Further, it is averred that during the pendency of present petition, respondents have issued Order No. 272/E of 2016, dated 23.09.2016, whereby petitioners 2, 3 and 6 have been adjusted as Incharge Drivers Grade-II and petitioner No. 7 has been adjusted as Tractor Cleaner in their own pay and scale against the available posts. However, it is averred that petitioner No. 1 has been retired as a Helper and neither he nor petitioner No. 4 has not been accorded the benefit of the post and grade of Driver. 16. I have heard learned counsel appearing for the parties, considered their rival contentions and perused the writ record. 17. It is the specific case of petitioners herein in paragraphs 2 to 8 of the writ petition that they were appointed as Drivers on daily wage basis between the period 1987 to 1992, except petitioners 4 and 7, who too with effect from August 1995 and 1994 respectively had been assigned the duties of a Driver and all have been performing their duties as such. Further, it is their specific stand that although their services subsequently came to be regularized either as Helper or Peon, but they have all along been performing their duties as Drivers only. Further, it is their specific stand that although their services subsequently came to be regularized either as Helper or Peon, but they have all along been performing their duties as Drivers only. Respondents 1 to 3 in reply to paragraphs 2 to 8, have neither disputed nor denied these facts; meaning thereby they too have admitted that the petitioners were appointed as Drivers on daily wage basis and they have been performing their duties as such since then except petitioners 4 and 7, who had been performing their duties as Drivers since August 1995 and 1994 respectively. 18. The two grounds taken by respondents 1 to 3 in denying the claim of petitioners is that in terms of Jammu and Kashmir Agriculture (Subordinate) Services Recruitment Rules, 2004, the posts of Drivers are to be filled up by Direct Recruitment, and, that in terms of SRO 64 of 1994, the services of petitioners are to be regularized against Class-IV posts only, i.e., helpers/peons. 19. A perusal of Jammu and Kashmir Agriculture (Subordinate) Services Recruitment Rules, 2004 reveals that the same came to be notified vide SRO No. 02, dated 02.01.2004 and the same were to come into force from the date of their publication in the Government Gazette; meaning thereby these Rules cannot be said to have any retrospective effect. Similarly, Jammu and Kashmir Daily Rated Workers/Work Charged Employees (Regularization) Rules, 1994 came to be notified vide SRO 64, dated 24.03.1994 and came into force with effect from 01.04.1994. Whereas, the petitioners herein came to be appointed as Drivers on daily wage basis between the period 1987 to 1993, therefore, the said rules, more particularly Jammu and Kashmir Agriculture (Subordinate) Services Recruitment Rules, 2004 being prospective in nature do not apply to the case of petitioners herein. 20. Now the question remains to be decided is whether the services of petitioners herein could have been regularized against the posts of Driver or not. 21. 20. Now the question remains to be decided is whether the services of petitioners herein could have been regularized against the posts of Driver or not. 21. Before proceeding further, it would be appropriate to reproduce hereunder the relevant portion of Order No. 392/E of2009, dated 03.12.2009: From the above it is quite clear that Shri Darshan Lal was initially appointed as Class-IV Mali on 08.05.1985 and working as Truck Cleaner since 1992, where as S/Shri Manohar Lal, Suresh Kumar and Keshav Singh were engaged as Daily Wager Driver and after completion of seven years service were regularized as Class-IV on 01.04.1994 and 01.04.1995 and thereafter promoted as Driver Grade-II in the grade of 3050-4910 on 29.05.1997 and finally as Driver Grade-I in the grade of 4000-6000 on 29.05.2002 but Shri Darshan lal deprived for such benefits. Therefore, in order to redress the grievance of the applicant, Shri Darshan Lal is promoted notionally as Driver Grade-II (3050-4910) on 29.05.1997 and Driver Grade-I (4000-6000) w.e.f. 29.05.2002. However, the benefit of grade in case is allowed from the date of issue of this order. Shri Darshan Lal is posted as Driver in the office of the Potato Development Officer, Jammu against an available vacancy." 22. On one hand the specific stand of respondents 1 to 3 is that the petitioners cannot be regularized/adjusted against the post of Drivers in violation of rules, whereas, on the other hand, the above-quoted order itself speaks, that respondents 1 to 3 have been promoting such persons on their own, that too with effect from a retrospective date, who were similarly situated to that of petitioners herein. Thus, respondents 1 to 3 cannot be allowed to take two contradictory stands. Said Darshan Lal though was initially appointed as Class-IV Mali on 08.05.1985, but was working as Truck Cleaner since 1992, whereas petitioners 1, 2, 3, 5 and 6 came to be appointed as Drivers on daily wage basis much earlier to him. 23. Thus, respondents 1 to 3 cannot be allowed to take two contradictory stands. Said Darshan Lal though was initially appointed as Class-IV Mali on 08.05.1985, but was working as Truck Cleaner since 1992, whereas petitioners 1, 2, 3, 5 and 6 came to be appointed as Drivers on daily wage basis much earlier to him. 23. Further, respondents 1 to 3 have regularized/adjusted three persons, namely, Romesh Chander, Dev Raj and Ranga Ram against the posts of Driver in the pay scale of 4000-6000 vide Order No. 37-Agri of 2008, dated 20.02.2008, who, as averred in the present petition, too came to be appointed as Drivers on daily wage basis in the Agriculture Department in 1987,1990 and 1988 respectively, though they too had filed petitions in this Court and it had been directed to regularize their services against the posts of Driver. 24. It is very strange that on one hand respondents 1 to 3 have been taking the services of Class-IV officials such as Mali (Gardeners), Helpers etc. against the posts of Driver and allowing them to ply Government vehicles against the rule position, that too without giving them any charge allowance etc., whereas, on the other hand they are not regularizing/adjusting them against the said posts on the plea that the posts of Drivers are meant for direct recruitment. Not only this, respondents 1 to 3 on their own have been regularizing/adjusting such persons against the posts of Drivers who are similarly situated to that of petitioners herein, even some of them were appointed on daily wage basis much after the appointment of petitioners, which amounts to discrimination vis-avis same set of persons and the said action of respondents 1 to 3 cannot stand the test of law laid down under Articles 14 and 16 of the Constitution of India. Thus, it leaves a big question mark on the functioning of respondents 1 to 3. 25. Further, in the objections as well as during the course of hearing of this petition, the specific stand of learned counsel for respondents 1 to 3 is that in view of Jammu and Kashmir Agriculture (Subordinate) Services Recruitment Rules, 2004, the petitioners are not entitled to claim their regularization/adjustment against the posts of Driver, whereas, during the pendency of writ petition, they have issued Order No. 272/E of 2016, dated 23.09.2016, whereby as many as 26 Helpers, Mali (Gardner) etc. have been adjusted as Incharge Driver (Grade-II)/Tractor Cleaner in the grade of 5200-20200+1900 grade pay in their own pay and grade against available posts; meaning thereby, by issuance of this order, respondents 1 to 3 have themselves admitted the claim of petitioners. In order dated 23.09.2016 petitioners 2, 3 and 6 have been adjusted as Incharge Drivers Grade-II and petitioner No. 7 has been adjusted as Tractor Cleaner in their own pay and scale against the available posts. Once respondents 1 to 3 were denying regularization/adjustment of petitioners against the posts of driver on the ground that the said posts are meant for direct recruitment citing rule position, then how they have issued order dated 23.09.2016 (supra) adjusting as many as 26 Helpers, Malis (Gardeners) etc. as Incharge Driver (Grade-II); meaning thereby respondents 1 to 3 were misleading the Court with an intent not to regularize the services of petitioners against the posts of Driver from a retrospective date despite the fact that they were having sufficient posts at the relevant time and that petitioners have been discharging their duties against the posts of Driver for the last more than two decades. 26. Further, it is not the stand of respondents 1 to 3 that the petitioners were not qualified to be regularized against the posts of Driver or they were negligent in any manner in performing their duties, rather respondents 1 to 3 have been taking the services of petitioners against the posts of Driver for the last 25 to 30 years, i.e., when petitioners came to be appointed as such on daily wage basis, that too without giving them any charge allowance etc. Further, it is also not the stand of respondents 1 to 3, neither in the objections nor during the course of hearing of this petition, that at the relevant point of time posts of Driver were not available with the department against which the petitioners could have been considered, rather respondents 1 to 3 have themselves admitted that the petitioners have been performing their duties of driver for the last more than two decades. Even it is the admitted stand of respondents 1 to 3 that petitioners never performed their duties against the posts of Mali/Helper etc. against which their services have actually been regularized. 27. Therefore, in view of what has been discussed above, I deem it proper to allow the writ petition. Even it is the admitted stand of respondents 1 to 3 that petitioners never performed their duties against the posts of Mali/Helper etc. against which their services have actually been regularized. 27. Therefore, in view of what has been discussed above, I deem it proper to allow the writ petition. Accordingly, the writ petition is allowed. Respondents 1 to 3 are directed to consider the case of petitioners for regularization of their services against the post of Driver Grade-II notionally with effect from the date each one of them had completed seven years of service against the post of Driver on daily wage basis and, thereafter, promote them notionally against the post of Driver Grade-I with effect from 29.05.2002, i.e., when one Darshan Lal came to be promoted as such vide Order No. 392/E of 2009, dated 03.12.2009 (supra) and fix then seniority accordingly. Said Darshan Lal though was initially appointed as Class-IV Mali on 08.05.1985, but was working as Truck Cleaner since 1992. Petitioners shall be entitled to monetary benefit with effect from 03.12.2009 in terms of Order No. 392/E of 2009, dated 03.12.2009 (supra). As regards petitioner Nos. 4 and 7, their period of seven years be calculated with effect from 01.01.1993 and January 1989 respectively, when they were appointed as Mali/Helper on daily wage basis. Petitioner No. 1 is stated to have retired from service, whereas petitioner No. 4 is stated to have died on 15.10.2011. Therefore, their pension, be fixed after regularizing their services, as directed above, and arrears be released accordingly. As regards petitioner No. 4, pension as well as arrears be released in favour of his next kin after completing requisite formalities. Let relevant orders, as directed above, be issued within a period of eight weeks from today. Connected miscellaneous petitions, accordingly, stands disposed of.