JUDGMENT : N. Sailo, J. 1. Heard Mr. A.R. Malhotra, the learned counsel for the petitioner and Mrs. Linda L. Fambawl, the learned Government Advocate appearing for the respondent Nos. 1 to 4. None appears for the private respondent Nos. 5 to 8. 2. This is the second time that the petitioner is before this Court. The earlier writ petition i.e. WP (C) No. 25/2016 was disposed of vide Order dated 24.02.2016, with a direction to the petitioner to submit a fresh representation before the respondent No. 3 within a time frame and whereafter, the said respondent was directed to dispose of the same within a time frame as well. 3. Pursuant to the said direction, the petitioner filed her representation but however, the same was rejected vide Order dated 28.06.2016. The Order dated 28.06.2016 (Annexure- 25) is impugned in the present writ petition. 4. Brief facts essential for disposal of the present writ petition may be narrated at the outset. The petitioner after being appointed as a Lower Division Clerk (LDC) is working as such since 22.10.1987. The next promotional post from the post of LDC is to the post of Upper Division Clerk (UDC). As per Mizoram Sub-ordinate Ministerial Service Rules, 1998 (Service Rules of 1998), 66 2/3 % of the vacancies in the UDC grade is to be filled up by way of promotion from amongst the members of the service in the LDC grade, having 5 years of service and who are included in the panel list for such promotion. The method of recruitment to this grade is by way of non-selection. The remaining percentage of the vacancies is to be filled up by way of direct recruitment. 5. The Rules of 1998 came to be amended by the Mizoram Sub-ordinate Ministerial Service Amendment Rules, 1999 (Amendment Rules of 1999) from the day it was published in the Mizoram Gazette i.e. 17.09.1999. As per the Amendment Rules of 1999, 40% of the vacancies in the post of UDC is to be filled up by promotion from amongst the members of the service in the LDC grade with 5 years service by non-selection method. 20% of the vacancies is to be filled up by way of Limited Departmental Examination (LDE) and the remaining 40% of the vacancies by direct recruitment. 6. 20% of the vacancies is to be filled up by way of Limited Departmental Examination (LDE) and the remaining 40% of the vacancies by direct recruitment. 6. The State respondents thereafter framed the Mizoram Ministerial Service Rules, 2011 (Service Rules of 2011) whereby, 40% of the post in the UDC grade is to be filled up by promotion from amongst the members of the service in the LDC grade with 5 years regular service in the grade, on the basis of seniority cum merit. 20% of the post is again to be filled up by way of LDE and the remaining 40% of the post by way of direct recruitment. The Service Rules of 2011 became effective on the date of its publication in the Official Gazette i.e. 30.09.2011. 7. The State respondents, on account of certain vacancies, decided to fill up 3 (three) posts of UDC under the Soil and Water Conservation Department and accordingly, in response to the approval conveyed by the Director of Soil and Water Conservation Department, the administrative Department concerned vide Communication dated 31.05.2012 (Annexure-5) gave approval for filling up of 3 (three) posts of UDC. As per the approval, 1 (one) post to be filled up by promotion and the other 2 (two) posts by way of LDE. The said communication also indicated that the approval of the DP & AR (ARW) as well as the concurrence of the Finance Department was obtained. Following the approval Vigilance clearance of the 3 (three) eligible candidates including the petitioner who was at serial No. 1 was sought from the Vigilance Department by the respondent No. 4, vide his Communication dated 04.06.2012. 8. The 3 (three) vacancies as per the roster prepared by respondent No. 4 occurred due to the promotion of one Smt. Rengpuii w.e.f. 01.07.2007, due to the expiry of Smt. Lalnghakliani on 09.02.2008 and due to the promotion of Lalthlamuani w.e.f. 01.04.2011. The first vacancy was earmarked to be filled up by way of promotion and the subsequent two vacancies, by way of LDE and as per the prepared roster. The respondent No. 4 vide Office order dated 11.06.2012 published the final seniority list of LDC, working under the Soil and Water Conservation Department wherein, the petitioner was placed at serial No. 1. The date of entry into the post of LDC, by the petitioner, was shown to be 23.10.1987. 9. The respondent No. 4 vide Office order dated 11.06.2012 published the final seniority list of LDC, working under the Soil and Water Conservation Department wherein, the petitioner was placed at serial No. 1. The date of entry into the post of LDC, by the petitioner, was shown to be 23.10.1987. 9. However, despite the proposal to fill up the 3 (three) vacancies in the post of UDC, as no further step was taken, the petitioner was prompted to file a representation before the respondent No. 4 on 31.05.2012. While she was awaiting favourable consideration, the respondent authorities came up with another approval, which was in super-session of approval already conveyed on 31.05.2012. The Under Secretary to the Government of Mizoram, Soil and Water Conservation Department, by his communication to the respondent No. 4 on 08.10.2012 conveyed the approval of the Government for filling up of 4 (four) vacant posts of UDC, by way of LDE only. Pursuant thereto, LDE was held for filling up the 4 (four) posts of UDC and consequently, the private respondent Nos. 5, 6, 7 and 8 were selected for promotion to the post of UDC. 10. The promotion of the private respondents however on account of certain complaint made by the participants in the LDE was kept in abeyance vide Notice dated 29.01.2013, which prompted the private respondent Nos. 5, 6 and 8 to approach this Court by filing WP (C) No. 8/2013. The writ petition was finally disposed of vide Judgment and Order dated 07.02.2014 by directing the respondent authorities to communicate the result of the LDE held on 19th-23rd November, 2012 to the DPC and thereafter, to pass appropriate orders, as per the recommendation within a time frame. Pursuant to the said direction, the private respondent Nos. 5 to 8 were promoted vide Office Order No. 46/2014 dated 20.06.2014 (Annexure-13). 11. However, in so far as the grievance of the present petitioner is concerned, she submitted several representations before the respondent No. 4, to the Chief Minister of the State and to the Secretary, NLUP Implementing Board. As her grievance was not mitigated, the petitioner approached this Court by filing WP (C) No. 25/2016. The writ petition was disposed of vide Order dated 24.02.2016. As her grievance was not mitigated, the petitioner approached this Court by filing WP (C) No. 25/2016. The writ petition was disposed of vide Order dated 24.02.2016. This Court while disposing of the writ petition took into consideration the fact that 1 (one) post of UDC grade, in the Soil and Water Conservation Department, fell vacant on 01.07.2007 due to the promotion of Smt. Rengpuii and that the said vacancy was to be filled up as per the relevant recruitment rules prevalent at the relevant time. As per the Recruitment Rules of 1998 as well as the Amendment Rules of 1999, which was prevalent at the relevant time, the vacancy is to be filled up by an LDC, having regular service of 5 years in the grade and by non-selection method. The petitioner, admittedly being the senior-most at the relevant time, was the eligible contender. Therefore, this Court in the above background directed the petitioner to file a fresh representation before the respondent No. 3 for consideration within a time frame and the respondent No. 3, upon receipt of the same, was also directed to dispose of the representation within a time frame. This is how the impugned Order dated 28.06.2016 came to be passed by the respondent No. 3. 12. Mr. A.R. Malhotra submits that although the respondent No. 3 in the impugned Order dated 28.06.2016 considered the fact as to whether there was any vacancy in the quota meant for promotion before the commencement of the Service Rule of 2011 and whether, the petitioner was qualified to be promoted as per the interse seniority maintained prior to the commencement of the Service Rule of 2011, the conclusion made in the impugned order appears to be only misconceived inasmuch as the petitioner at the relevant time was the senior- most LDC under the Soil and Water Conservation Department. Although a mention has been made that the senior-most LDCs, who were qualified were promoted as per the interse seniority maintained by the department, there is no mention as to who those persons were and who were promoted to the UDC grade. 13. Mr. A.R. Malhotra further refers to the affidavit-in-opposition filed by the respondents more particularly para 10, and submits that the 3 (three) LDCs, who were senior to the petitioner when the vacancy arose on 01.07.2007 and 09.02.2008, were one Shri. R. Lalthlamuani and Shri. F. Lalduhawma. 13. Mr. A.R. Malhotra further refers to the affidavit-in-opposition filed by the respondents more particularly para 10, and submits that the 3 (three) LDCs, who were senior to the petitioner when the vacancy arose on 01.07.2007 and 09.02.2008, were one Shri. R. Lalthlamuani and Shri. F. Lalduhawma. He submits that however, as per the roster reproduced in para 6 of the affidavit-in- opposition and which is similar to the roster annexed in the writ petition as part of Annexure-6, the persons mentioned herein above were already promoted and were in the grade of UDC. Therefore, there is no question of them having been promoted against the vacancies, which occurred on 01.07.2007 and 09.02.2008 or on 01.04.2011. In order to further substantiate his submission, Mr. A.R. Malhotra has produced the promotion orders of Smt. R. Lalthlamuani, Shri. F. Lalduhawma, Smt. Lallawmthangi, which were issued vide Office Order No. 101/2019 dated 02.12.2009 and Office Order No. 192/2011 dated 02.03.2011 respectively. He submits that as per the promotion orders, 3 (three) persons were promoted against the vacancies created by persons other than those mentioned in the roster. He therefore submits that the impugned order rejecting the representation of the petitioner is only misconceived and warrants the interference of this Court. The authorities may therefore be directed to consider the petitioner for promotion from the date vacancy occurred due to the promotion of incumbent Smt. Rengpuii i.e. 01.07.2007. 14. Mrs. Linda L. Fambawl, the learned Government Advocate appearing for the State respondents submits that due to a several complaints received by the Department, the roster prepared by the Department when approval was given for filling up 3 vacant post of UDC was not found to be feasible to be acted upon. As per the correct roster, out of 28 proposed sanctioned posts, the 24 posts were already filled up and thereby, leaving 4 vacancies to be filled up. She submits that in fact, out of total 28 sanctioned posts, 19 posts were already filled up by promotion while 5 posts were filled up by direct recruitment. Therefore, the remaining 4 posts were to be filled up by way of LDE. Accordingly, the private respondents were considered and promoted against the 4 (four) vacancies. She submits that in fact, out of total 28 sanctioned posts, 19 posts were already filled up by promotion while 5 posts were filled up by direct recruitment. Therefore, the remaining 4 posts were to be filled up by way of LDE. Accordingly, the private respondents were considered and promoted against the 4 (four) vacancies. By referring to para 10 of the affidavit-in-opposition, the learned Government Advocate submits that the petitioner was not the senior-most when vacancies occurred on 01.07.2007 and 09.02.2008, as per the seniority list of 2009, but when she became the senior-most after the vacancy arose on 01.04.2011, she could not be considered for promotion because the quota meant for promotion was well over-exceeded and since the State respondents cannot flout their own rules, they were not in a position to consider the promotion of the petitioner. 15. I have heard the submissions made by the learned counsels for the rival parties and I have perused the materials available on record. 16. As may be noticed from the pleadings of the rival parties and the documents appended thereto, there is no dispute to the fact that 1 post of UDC was vacant w.e.f. 01.07.2007 due to the promotion of Smt. Rengpuii. Thereafter, 1 (one) more post of UDC became vacant as on 09.02.2008 due to the expiry of one Smt. Lalnghakliani and which was followed by another vacancy w.e.f. 01.04.2011 on account of the promotion of one Smt. Lalthanthuami. The relevant Rules during the occurrence of the vacancy was the Amended Rules of 1999, wherein promotion to the post of UDC from the post of LDC was to be made from LDCs having 5 years of regular service in the Grade and by non-selection method. The percentage allotted for such consideration was 40% of the vacancies by way of promotion. The remaining 20% and 40% of the vacancies by way of LDE and by way of direct recruitment respectively. Therefore, 1 post out of the 3 vacancies ought to have been filled up by promotion. By the time the approval for filing up of 3 posts of UDC was given i.e. in the month of May, 2012, the petitioner admittedly was the senior-most. As such, going by the recruitment Rules in vogue, the petitioner ought to have been considered for the vacancy which occurred w.e.f. 01.07.2007. By the time the approval for filing up of 3 posts of UDC was given i.e. in the month of May, 2012, the petitioner admittedly was the senior-most. As such, going by the recruitment Rules in vogue, the petitioner ought to have been considered for the vacancy which occurred w.e.f. 01.07.2007. This in fact was also the finding of this Court in WP (C) No. 25/2016 vide Order dated 24.02.2016. However, instead of directing the respondents to consider the petitioner for her promotion, a representation was instead directed to be submitted by the petitioner afresh. Coming to the impugned Order dated 28.06.2016, the same only appears to be vague, inasmuch as, nothing has been divulged i.e. as to who were the senior LDCs considered and promoted to UDC during the relevant time. The affidavit-in- opposition of the respondent authorities is also again contradictory. As per the roster reproduced in para 6 of the said affidavit, Smt. R. Lalthlamuani, Sh. F. Lalduhawma and Smt. Lallawmthangi are shown to be already promoted and their names appear at Serial No. 23, 24 and 25 respectively in the roster. On the other hand, at para 10 of the same affidavit, it is stated that the 3 persons as aforementioned are senior to the petitioner when the vacancies occurred on 01.07.2007 and 09.02.2008. In fact the question of these 3 UDCs being senior to the petitioner cannot arise since they had already been promoted as can be seen from the roster itself. The promotion Orders dated 21.02.2009 and 02.03.2011 produced by Mr. A.R. Malhotra also indicates that these 3 (three) persons were promoted against the vacancies created by Sh. Saimawia Ngente, Smt. R. Laldingliani and Smt. Thanhliri. Therefore, the contention of the State respondents that the petitioner could not be considered for promotion either on the ground of not being the senior-most or on the ground of there being an excess number of promotees, is only misconceived, unfounded and cannot be accepted. Upon considering the facts and its entirety, I am of the considered opinion that the petitioner has made out a case for the interference of this Court. 17. In the case of State of Arunachal Pradesh and Another vs. K.K. Hazarika, 2009 (3) GLT 535, as referred to by Mr. Upon considering the facts and its entirety, I am of the considered opinion that the petitioner has made out a case for the interference of this Court. 17. In the case of State of Arunachal Pradesh and Another vs. K.K. Hazarika, 2009 (3) GLT 535, as referred to by Mr. A.R. Malhotra, the Division Bench of this Court while upholding the decision of the learned Single Judge, held that the provisions prescribed under the recruitment Rules statutory framed cannot be over-written by executive instructions. The action of the official respondents, in not considering the writ petitioner therein from the date he became eligible as prescribed by the relevant recruitment Rules, was interfered with and accordingly, the State respondents were directed to consider his case with effect from the date he became eligible. 18. In the result, upon considering the case in its entirety, the writ petition is disposed of with a direction to the State respondents to consider the petitioner for her promotion to the post of UDC from the date the private respondents were promoted and with reference to the vacancy date of 01.07.2007 by constituting a Special DPC within a period of four weeks from the date of receipt of a certified copy of this order. It is made clear that if the petitioner is found to be eligible and fit for promotion, she shall be promoted with effect from the date the private respondent Nos. 5 to 8 were promoted. However, the petitioner will not be entitled to backwages except notional fixation of pay and other usual service benefits. 19. No cost.