JUDGMENT : Heard Mr. D. Panging, learned counsel for the petitioners and also heard Mr. S. Tapin, learned Sr. Govt. Advocate, for the State respondents. 2. It is submitted at the Bar that a common question of law is involved in these two writ petitions No. WP(C) No. 99 (AP)/2021 and WP(C) No. 105 (AP)/2021, and as such both may be heard together and may be disposed of by a common judgment and order. Accordingly, as agreed, it is proposed to dispose of the same by this common judgment and order. 3. It is to be mentioned here that in WP(C) No. 99 (AP)/2021, the petitioner-Shri Dilip Yosung has put to challenge the (i) The Office Memorandum (O.M.).No. AR-74/2013, dated 28.01.2014 (ii) Office Memorandum No. AR-74/2013/Vol-II, dated 29.08.2019 issued by the Chief Secretary, Govt. of Arunachal Pradesh (iii) Recommendation of the Departmental Promotion Committee Meeting held on 08.09.2020, (iv) Order No. HMB(A) 169/2020, dated 21.09.2020. The petitioner also prayed for directing the respondent to promote him to the Arunachal Pradesh Police Service (APPS) Grade-I, as per the provision of the ‘Arunachal Pradesh Police Service (Amendment) Rules, 2006’. 4. The factual background leading to filing of this petition is briefly stated as under :- “The petitioner, Shri Dilip Yosung is presently serving as Deputy Superintendent of Police, which is the Entry Grade of Arunachal Pradesh Police Service. The next higher grade is Arunachal Pradesh Police Service is Grade I. As per Arunachal Pradesh Police Service (Amendment) Rules, 2006, 100% posts of Grade I are to be filled up by promotion, from amongst the candidate who have completed 5 years service in Entry Grade and no educational qualification is prescribed therein. On 28.01.2014, the Chief Secretary to the Govt. of Arunachal Pradesh issued one Office Memorandum, vide No. AR-74/2013, fixing the minimum educational qualification as graduation or Bachelor Degree from a recognized University for promotion to Group B and Group A posts/services, under the Govt. of Arunachal Pradesh, and all the Departments/Ministries/ Organizations’ were directed to carryout necessary amendments in the relevant Service Rules/Recruitment Rules in terms of Office Memorandum No. 28.01.2014. Thereafter, on 27.05.2015, the Govt. of Arunachal Pradesh has issued another Office Memorandum suspending Office Memorandum dated 28.01.2014, for a period of 4 years so as to enable the Govt. Servants to acquire the Bachelor Degree, who have not acquired the same. Thereafter, vide O.M. No. 29.08.2019, the Govt. Thereafter, on 27.05.2015, the Govt. of Arunachal Pradesh has issued another Office Memorandum suspending Office Memorandum dated 28.01.2014, for a period of 4 years so as to enable the Govt. Servants to acquire the Bachelor Degree, who have not acquired the same. Thereafter, vide O.M. No. 29.08.2019, the Govt. has reintroduced the minimum educational qualification and brought the same to the notice of all the Departments/Ministries/Organization. But, it was silent about the requirement of the amendment of the relevant Recruitment Rules. Thereafter, without making amendment of the Arunachal Pradesh Police Service (Amendment) Rules, 2006, vide impugned order dated 21.09.2020, on the recommendation of the Departmental Promotion Committee dated 08.09.2020, the private respondent No.7 is promoted to the APPS Grade-I superseding the petitioner being a non-graduate. The petitioner, being aggrieved by the action of the state respondent, in promoting the private respondent, without carrying out amendment of the Arunachal Pradesh Police Service (Amendment) Rules, 2006, approached this court claiming the relief as aforementioned.” 5. And in writ petition No. 105(AP)/2021, the petitioners, Shri Mito Riba & 2 Ors have challenged (i) The Office Memorandum No. AR-74/2013, dated 28.01.2014 (ii) Office Memorandum No. AR-74/2013/Vol.-II, dated 29.08.2019 issued by the Chief Secretary, Govt. of Arunachal Pradesh, (iii) W.T. Message dated 03.02.2021 and 11.03.2021, by which the state respondent has initiated process for filling up the unfilled vacancies. The petitioner also prayed for directing the state respondent to promote him to the APPS Grade-I as per ‘Arunachal Pradesh Police Service (Amendment) Rules, 2006’. 6. The factual background leading to filing of this petition is briefly stated as under :- “The petitioners are presently serving as Deputy Superintendent of Police, which is the Entry Grade of Arunachal Pradesh Police Service. The next higher grade is Arunachal Pradesh Police Service is Grade I. As per Arunachal Pradesh Police Service (Amendment) Rules, 2006, 100% posts of Grade I are to be filled up by promotion from amongst the candidate who have completed 5 years service in Entry Grade. Thereafter, on 28.01.2014, the Chief Secretary to the Govt. of Arunachal Pradesh issued one Office Memorandum vide No. AR-74/2013, fixing the minimum educational qualification as graduation or Bachelor Degree from a recognized University for promotion to Group B and Group A posts/services under the Govt. Thereafter, on 28.01.2014, the Chief Secretary to the Govt. of Arunachal Pradesh issued one Office Memorandum vide No. AR-74/2013, fixing the minimum educational qualification as graduation or Bachelor Degree from a recognized University for promotion to Group B and Group A posts/services under the Govt. of Arunachal Pradesh, and all the Departments./Ministries/Organizations’ were directed to carryout necessary amendments in the relevant Service Rules/Recruitment Rules in terms of Office Memorandum No. 28.01.2014. Thereafter, on 27.05.2015, the Govt. of Arunachal Pradesh has issued another Office Memorandum suspending Office Memorandum dated 28.01.2014, for a period of 4 years so as to enable the Govt. Servants to acquire the Bachelor Degree, who have not acquired the same. Thereafter, vide O.M. No. 29.08.2019, the Govt. has re-introduced the minimum educational qualification and brought the same to the notice of all the Departments/Ministries /Organization, but it was silent about the requirement of the amendment of the relevant recruitment Rules. Thereafter, without making amendment of the Arunachal Pradesh Police Service (Amendment) Rules, 2006, vide impugned order dated 21.09.2020, on the recommendation of the Departmental Promotion Committee, dated 08.09.2020, recommended only one candidate. Though the cases of seven APPS Entry Grade Officers were taken up for consideration, yet, due to absence of Bachelor Degree, they have not been promoted. And now, the state respondents have initiated steps for filling up the unfilled vacancies in the rank of APPS Grade-I, vide WT messages, dated 03.02.2021 and 11.03.2021. The petitioners, being aggrieved by the action of the state respondent, in promoting the private respondent, without carrying out the amendment of the Arunachal Pradesh Police Service (Amendment) Rules, 2006, approached this court claiming the relief as aforementioned.” 7. The respondent No. 5 has filed his affidavit-in-opposition denying all the averments made in the petitions. It is stated that amendment of the Recruitment Rule has been carried out and the Draft Recruitment Rules has already been submitted to the Government vide letter No. PHQ/PER-58/2009, Vol-II, dated 22.07.2020, (Annexure-I), for approval. The respondent No. 5 has filed his affidavit-in-opposition denying all the averments made in the petitions. It is stated that amendment of the Recruitment Rule has been carried out and the Draft Recruitment Rules has already been submitted to the Government vide letter No. PHQ/PER-58/2009, Vol-II, dated 22.07.2020, (Annexure-I), for approval. It is stated that in the OM dated 27.05.2015, it has been mentioned that with a view to improve the quality and profession in public service delivery at the middle and supervisory level as most of the recruitment Rules of group ‘A’ and group ‘B’ post services particularly where their promotion happens to be one of the method of selection along with the direct recruitment, the Recruitment Rule do not specifically specify higher standard of educational qualification in promotion. As a result the functioning of office administration was being badly affected due to want of qualified officers in the middle and supervisory level. Therefore, the government felt that there is an immediate need for making rules overriding all existing Recruitment Rules in the state to have minimum educational qualification of graduation/bachelor degree in the entry grade for all group ‘A’ and ‘B’ posts/service in the state of Arunachal Pradesh. It is further submitted that the present writ petitions are devoid of merit and therefore it is contended to dismiss the same. 8. Mr. D. Panging, learned counsel for the petitioners, submits that in the Recruitment Rules no educational qualification is prescribed for promotion to APPS Grade-I from APPS Entry Grade. And by way of executive instruction, vide OM dated 28.01.2014, the Government cannot prescribe the educational qualification. Mr. Panging further submits that the recommendation of the respondent No. 7 on the basis of OM dated 28.01.2014, and initiation of the process for filling up the unfilled vacancies by the state respondents, vide WT Messages dated 03.02.2021, and 11.03.2021, is contrary to the settled position of law. Referring to a judgment and order of a Division Bench of this court in WA No. 166/2019, Mr. Panging submits that while dealing with the same issue, regarding the application of the Office Memorandum dated 28.01.2014, and while setting aside the judgment of a single Bench of this court in WP(C) No. 319(AP)/2016, it was held that it is not obligatory, though the Recruitment Rule was subsequently amended, as void was sought to be filled up by the aforesaid executive instruction. Mr. Mr. Panging submits that in the aforementioned W.A. No. 166/2019, the respondent No.1-Shri Taba Hanker, did not appear to contest the matter, and as such the proposition of law, laid down in Distt. Registrar, Palghat Vs. M. B. Koyyakutty, reported in AIR 1979 SC 1060 , wherein the Hon’ble Supreme Court, while deciding a similar issue and facts, held that when the relevant Rules does not provide for possessing any minimum educational qualifications, the government by way of an administrative instructions cannot bring in any new educational qualification for the purpose of consideration for promotion, was not brought to the notice of the Division Bench. Mr. Panging further submits that the only direct judgment on the issue is the case of M.B.Koyyakutty (supra) and as such, the decision rendered in W.A. 166/2019, is contrary to the law laid down by the Hon’ble Supreme Court and as such the same becomes per incuriam, and therefore, it is contended to refer these two writ petitions to a Division Bench in terms of the law laid down in Official Liquidator Vs. Dayanand, reported in (2008) 10 SCC 1 , (Paragraph 79). 9. Per contra, Mr. S. Tapin, learned Sr. Govt. Advocate, for the State respondents, vehemently opposed the submissions advanced by Mr. Panging and defended the Office Memorandum dated 28.01.2014, stating that to improve the quality and profession in public service delivery prescribing of minimum educational qualification is necessary. Mr. Tapin further pointed out APPS Grade-I is a higher Grade and the officers of said Grade requires higher skill and quality than the APPS Entry Grade, and that the Office Memorandum dated 28.01.2014, is no way contrary to any Rule. Mr. Tapin further submits that when there is a gap in the relevant Rule, and the Govt. can supplement the same by way of executive instruction. Defending the judgment of the Division Bench in W.A. 166/2019, Mr. Tapin further submits that the judgment of Division Bench of this court is not per incurium as contended by the learned counsel for the respondent. Mr. Tapin has referred following case laws in support of his submissions :- (i) Santaram Sharma vs. State of Rajasthans; AIR 1967 SC 1910 ; (ii) State of U.P. & Anr. Tapin further submits that the judgment of Division Bench of this court is not per incurium as contended by the learned counsel for the respondent. Mr. Tapin has referred following case laws in support of his submissions :- (i) Santaram Sharma vs. State of Rajasthans; AIR 1967 SC 1910 ; (ii) State of U.P. & Anr. vs. Synthetic & Chemical Ltd & Anr.: (1991) 4 SCC 139 ; (i) A.R. Antulay vs. R.S. Nayak: (1988) 2 SCC 602 ; (ii) Hyder Consulting (UK) Ltd. vs. Governor, State of Orissa: (2015) 2 SCC 189 ; (iii) Official Liquidator vs. Dayananda: (2008) 10 SCC 1 ; (vi) Union of India & Ors. Vs. Somasundaram Viswanath & Ors. (1989) 1 SCC 175 , (iv) Comptroller and Auditor General of India vs. Mohon Lal Mehrotra: (1992) 1 SCC 20 , (v) T.R. Kothandaraman vs. T.N. Water Supply and Drainage Board Engineers Association: (1994) 6 SCC 282 , (ix) State of W.B. vs. Madan Mohan Ghosh: (2002) 9 SCC 177 , (vi) N.K. Pankajakshan Nair vs. P.V. Jayraj and Others: (2002) 10 SCC 396, (xi) Chandan Banarjee and Others vs. Krishna Prasad Ghosh and Others reported in (2021) SCC Online SC 773, 10. In his reply, Mr. Panging, the learned counsel for the petitioner has submitted that none of the cases referred by Mr. Tapin, the learned Sr. Govt. Advocate is applicable to the facts and circumstances here in this case. And the last case law, i.e. Chandan Banerjee (supra) instead, advances the case of the petitioners’ not of the respondent. 11. Having heard the submission of learned Advocates of both sides I have gone through the petitions and the documents placed on record. Also, I have gone through the case laws referred by learned Advocates of both sides. 12. It appears that the principal ground, on which the impugned actions in both the writ petitions were assailed, is the educational qualification for promotion to APPS Grade I from APPS Entry Grade, as provided in Arunachal Pradesh Police Service Rules, 1989, and Amendment Rules 2006, which regulates the method of promotion for the post of APPS (Grade-I). It is to be noted here that the said Rule did not provide for any educational qualification. There is no quarrel at the bar in this regard. It is to be noted here that the said Rule did not provide for any educational qualification. There is no quarrel at the bar in this regard. It is to be mentioned here that the qualification provided in the said Rules is only five years service in Entry Grade. 13. It is to be noted here that while the recommendation of respondent No.7 is made by the DPC for promotion to the APPS Grade-I, the Government of Arunachal Pradesh, vide O.M. No. AR-74/2013/Vol-II dated 29.08.2019, has reintroduced the impugned Office Memorandum No. AR-74/2013, dated 28.01.2014, issued by the Chief Secretary to the Govt. of Arunachal Pradesh fixing the minimum educational qualification as graduation or Bachelor Degree from a recognized University for promotion to Group ‘B’ and Group ‘A’ posts/services under the Govt. of Arunachal Pradesh, and brought the same to the notice of all the Departments/Ministries/Organization. 14. Further, it appears that vide Office Memorandum dated 28.01.2014, all the Departments/Ministries/Organizations’ were directed to carryout necessary amendments in the relevant Service Rules/Recruitment Rules. And in terms the said Office Memorandum No. 28.01.2014, the Police Department has bring out necessary amendment and prepared Draft Recruitment Rules, incorporating the educational qualification for promotion to Grade-I of APPS, from Entry Grade, as Bachelor Degree, and forwarded the same to the Government, vide letter No. PHQ/PER-58/2009, Vol-II. Dated 22.07.2020, for approval, which is apparent from the affidavit in opposition of respondent No.5. 15. And it also appears that pending approval of the Draft Recruitment Rules, the Departmental Promotion Committee vide its resolution dated 08.09.2020, recommended respondent No.7 for promotion to APPS Grade-I. Though the cases of seven APPS Entry Grade Officers were taken up for consideration, yet due to absence of Bachelor Degree, their cases could not be considered. Further, it appears that the respondent authority has initiated steps for filling up the unfilled vacancies in the rank of APPS Grade-I, vide WT messages, dated 03.02.2021 and 11.03.2021. 16. A cursory perusal of the recommendation of the DPC, dated 08.09.2020, would reveal that the DPC has taken into consideration the OM of AR Department and the educational qualification prescribed in the APPS Recruitment Rules in recommending the respondent No.7 for promotion to APPS Grade-I. It needs to be mentioned here that in the earlier Recruitment Rules no educational qualification for promotion to APPS Grade-I was prescribed. Thus, it becomes apparent that while referring to the Rules in its recommendation, the DPC has obviously placed reliance upon the Draft Rules, where the educational qualification was prescribed, and which was pending before the Government for approval. 17. Therefore, while the Draft Rule was pending for approval of the Government and pursuant to the O.M. No. AR-74/2013/Vol-II dated 29.08.2019, the earlier O.M. No. AR-74/2013, dated 28.01.2014, by which the educational qualification has been prescribed, was reintroduced, the DPC has made recommendation of respondent No. 7 for promotion to APPS Grade-I and also initiated steps for filling up the unfilled vacancies in the rank of APPS Grade-I, vide WT messages, dated 03.02.2021 and 11.03.2021. This being the position, it cannot be said that without making amendment of the Arunachal Pradesh Police Service (Amendment) Rules, 2006, vide impugned order dated 21.09.2020, the respondent No.7 was recommended for promotion by the DPC on 08.09.2020, and the state respondents have initiated steps for filling up the unfilled vacancies in the rank of APPS Grade-I, vide WT messages, dated 03.02.2021 and 11.03.2021. Thus, the contention of the petitioner in the paragraph No. 10 of the petition that the Arunachal Pradesh Police Service (Amendment) Rule 2006 has not been amended bringing the criteria of possessing a bachelor Degree, appears to be not correct. It is to be noted here that the contention made in the paragraph No. 9 and 10 of the affidavit-in-opposition filed by respondent No.5 has not been disputed by the petitioner by filing any reply. 18. It is now a settled position of law that Rules, even in their draft stage can be acted upon provided there is a clear intention on the part of the Government to enforce those rules in the near future. Reference, in this context, can be made to a host of decisions of Hon’ble Supreme Court, such as:- (i) Abraham Jacob and Others Vs. Union of India [ (1998) 4 SCC 65 ] (ii) Vimal Kumari Vs. State of Haryana and Others [ (1998) 4 SCC 114 ], (iii) High Court of Gujarat and Another Vs. Gujarat Kishan Mazdoor Panchayat and Others [(2003) 4 SCC 712], 19. This being the factual and legal position, the submission of Mr. Union of India [ (1998) 4 SCC 65 ] (ii) Vimal Kumari Vs. State of Haryana and Others [ (1998) 4 SCC 114 ], (iii) High Court of Gujarat and Another Vs. Gujarat Kishan Mazdoor Panchayat and Others [(2003) 4 SCC 712], 19. This being the factual and legal position, the submission of Mr. D. Panging, the learned counsel for the petitioner, that the respondent authority has, without making amendment of the Arunachal Pradesh Police Service (Amendment) Rules, 2006, vide impugned order dated 21.09.2020, promoted the respondent No.7 to APPS Grade-I, on recommendation of the DPC on 08.09.2020, and the state respondents have initiated steps for filling up the unfilled vacancies in the rank of APPS Grade-I, vide WT messages, dated 03.02.2021 and 11.03.2021, got no legs to stand upon. As already stated, at the relevant point of time, amendment of the Rules has already been made, and the Draft Recruitment Rule was already pending for approval of the Government, and the O.M. No. AR-74/2013, dated 28.01.2014, was also reintroduced. And as already discussed, the DPC had taken into consideration the OM of AR Department and the educational qualification prescribed in the APPS Recruitment Rules, in recommending the respondent No.7 for promotion to APPS Grade-I. In all fairness to the petitioners, I must mention that even they did not assail the Draft Rules, and the averment of the respondents so made in the affidavit-in-opposition, by filing any reply. 20. As stated herein above, Mr. S. Tapin, the learned Senior Government Advocate has rightly submitted that in order to bring efficiency in public services, the impugned Office Memorandums have been issued by the Government. In the OM dated 27.05.2015, also it has been clearly stated that with a view to improve the quality and profession in public service delivery at the middle and supervisory level as most of the recruitment Rules of group ‘A’ and group ‘B’ post services, particularly where their promotion happens to be one of the method of selection along with the direct recruitment, the recruitment Rule do not specifically specify higher standard of educational qualification in promotion, and as a result the functioning of office administration was being badly affected for want of skilled officers in the police department, which has direct link with the public. Therefore, according to Mr. Therefore, according to Mr. Tapin, the government felt that there is an immediate need for making rules overriding all existing Recruitment Rules in the state, to have minimum educational qualification of graduation/bachelor degree in the entry grade for all group ‘A’ and ‘B’ posts/service in the state of Arunachal Pradesh. There is no dispute that the Grade-I posts of APPS carries higher responsibility. The duties are of a supervisory character, which requires higher mental equipment and administrative skill. Thus, the object to be achieved by the Govt. is to bring administrative efficiency. And this proposition is not disputed by the petitioners of both the petitions, and as such I find substance in the submission Mr. Tapin, the learned Senior Govt. Advocate. 21. I have considered the other limb of argument of Mr. Panging, the learned counsel for the petitioner. No doubt there is some substance in the submissions of Mr. Panging and the case laws relied upon by him also fortified his submission. But, as discussed here in above, there was not only the O.M. dated 28.01.2014, and 29.08.20219, before the DPC, but also the Draft Recruitment Rules, which was forwarded to the Government for approval vide letter No.PHQ/PER-58/2009, Vol-II, dated 22.07.2020. And this exercise was carried out as per the O.M. dated 28.01.2014. And from a conjoint reading of O.M. dated 28.01.2014, and 29.08.20219, it becomes apparent that the Government has clear intention to enforce the requirement of minimum educational qualification, which is being incorporated in the Draft Rules. Further, it appears from the O.M. dated 29.08.2019, that there was no claim and objection from any section of the employees for exemption of fixation of basic educational qualification as Graduate/Bachelor Degree from a recognized University for Group ‘A’ and ‘B’ posts. 22. Thus, the facts and circumstances in these writ petitions are completely different from the cases being relied upon by Mr. D. Panging, the learned counsel for the petitioner. And as such, the ratios, laid down in the said cases, would not advance the case of the petitioners. Besides, the cases of the present petitioners are different from the case of the appellant of Writ Appeal No. 166/2019, though in both challenge is made as to the legality of O.M. dated 28.01.2014 and 29.08.2019. And as such, the ratios, laid down in the said cases, would not advance the case of the petitioners. Besides, the cases of the present petitioners are different from the case of the appellant of Writ Appeal No. 166/2019, though in both challenge is made as to the legality of O.M. dated 28.01.2014 and 29.08.2019. It is to be noted here that in Writ Appeal No.166/2019, the Division Bench has set aside the judgment of learned Single Judge in WP(C) 319(AP)/2016, by holding that the void in the Recruitment Rules, in respect of educational qualification for promotion, was sought to be filled up by executive instruction issued on 28.01.2014. It is also to be noted here that the learned single Judge in WP(C) 319 (AP) 2016, has held that in absence of any corresponding amendment being made in the relevant rule, the decision taken vide Office Memorandum dated 28.01.2014, prescribing minimum educational qualification as Graduation for promotion to Group ‘B’ and ‘A’ posts by an order of the Chief Secretary to the Govt. of Arunachal Pradesh, cannot be, in the considered view of this court, superimposed over and above the Recruitment Rules. 23. And as such referring the case of the petitioners, which are factually different from the case of the appellant of Writ Appeal No. 166/2019, would not advance the case of the petitioners anymore. In view of above, I am not inclined to burden this judgment by discussing all those judgments, so referred by Mr. D. Panging, learned counsel for the petitioner and also by Mr. Tapin, the learned Senior Government Advocate. 24. In the result I find no merit in these writ petitions and accordingly, the same stands dismissed. The parties have to bear their own costs.