JUDGMENT : 1. Heard Sri Avneesh Tripathi, learned counsel for the petitioners, Sri V.K. Mishra, learned counsel for the Union of India and Sri Rohan Gupta, learned counsel for respondents nos. 2,3 4. 2. The petitioner no. 1 who is presently working as Senior Assistant Engineer (Special Grade) in a pay band-2 with Grade Pay 5400/- at pay matrix level 9 and petitioner no. 2 who is working as Senior Assistant Engineer, pay band-2 with grade Pay-4800/- at pay matrix level-8 in the Indian Institute of Technology, Kanpur (IIT, Kanpur) seek to challenge an advertisement issued by IIT Kanpur advertising 5 posts of Executive Engineer of which three posts are in unreserved category, vide advertisement no. 1 of 2023. 3. Both the petitioners claim that they deserved promotion at much earlier point of time to a higher post of Assistant Executive Engineer, pay band-3 with grade pay 5400/- at pay matrix level 10 as the feeding cadre for promotion was either Senior Assistant Engineer, pay band-2, with grade pay 4800/- at pay matrix level 8, or Senior Assistant Engineer (S.G.) in pay band-2 with grade pay 5400/- at pay matrix level-9. According to them, the post of Assistant Executive Engineer with grade pay 5400/- at pay matrix level-10 is not only post for direct recruitment at entry level of Group-A post, but is equally a promotional post from Group-B to Group A as per rules, and therefore, according to them they would have been entitled to be promoted as Executive Engineer, pay band 3 with grade pay 6600/- at pay matrix level-11, a Group-A post, which is subject to advertisement by direct recruitment. Their basic contention is that post of Executive Engineer advertised, is a promotional post and not a post meant for direct recruitment. It is submitted that as per recruitment and promotion rules that have come to be notified and reframed on 27th November, 2018 in suppression to 2013 Rules by the Board of Governors, the Apex Body of the institute with further modification in the year 2021. 4. According to learned Advocate Mr. Tripathi, appearing for the petitioners, the post in the field of engineering like from Junior Engineer upto Executive Engineer fall in the maintenance staff category of the Institute and are non faculty position. P-19 of the schedule appended to the rules provide for only two positions at entry level. 4. According to learned Advocate Mr. Tripathi, appearing for the petitioners, the post in the field of engineering like from Junior Engineer upto Executive Engineer fall in the maintenance staff category of the Institute and are non faculty position. P-19 of the schedule appended to the rules provide for only two positions at entry level. In Group-A, it is the Assistant Executive Engineer which is an entry level post whereas in the Group-B category post of Junior Engineer provided at entry level and all other posts at higher level, therefrom should be filled up by promotion except otherwise provided under the Rules. He emphatically submits that as far as post of Executive Engineer in the category of Group-A with pay band 3 and 4 are concerned, these posts are only meant to be filled up by promotion whereas the post of Assistant Executive Engineer which is a group-A post can be filled up both by way of direct recruitment as well as promotion with 50 per cent quota each, vide P-40 of the schedule to the rules. 5. Mr. Tripathi also submits that in view of P-33 of the schedule, post of Assistant Engineer pay band-2 is also to be filled up by promotion and direct recruitment with 50 percent quota each. He further submits that even earlier also the IIT Kanpur had committed this error of advertising the post of Executive Engineer under the advertisement issued on 16th September, 2023 being advertisement no. 1 of 2023, but upon correct facts being brought to the notice, the said post was withdrawn from the advertisement vide Corrigendum issued on 20.09.2023 by recruitment section, copy of which has been brought on record as Annexure 16 to the writ petition. 6. Mr. Tripathi in support of his argument has also relied upon the recruitment and promotion policy issued by the Indian Institute of Technology Ropad, dated 20th November, 2016 in which post of Executive Engineer in the engineering cadre is shown to be 50 per cent by promotion. He asserts that similarly Administrative Section of IIT Bombay has issued its recruitment and promotion policy on 22nd September, 2017 that provide for only post of Junior Engineer at entry level, the higher post of Assistant Engineer and Assistant Executive Engineer are for the purposes of first and second advancement. 7. Mr. He asserts that similarly Administrative Section of IIT Bombay has issued its recruitment and promotion policy on 22nd September, 2017 that provide for only post of Junior Engineer at entry level, the higher post of Assistant Engineer and Assistant Executive Engineer are for the purposes of first and second advancement. 7. Mr. Tripathi, has next submitted that as per guidelines issued by the Ministry of Human Resources and Development, Department of Higher Education dated 20th February, 2019, the post of Executive Engineer was suggested to be filled up 75 percent by direct recruitment and 25 percent by promotion. So in any view of the matter, according to him, some promotion quota was liable to be assigned to the post like Executive Engineer if not all and since now IIT Kanpur has proceeded to fill up this post by direct recruitment, petitioners would be denied their chance of further progress in the establishment. It is submitted that in the above regard, petitioners had earlier moved a representation before the Higher Authority, but instead of taking any action to consider the claim of petitioners for providing promotional avenues, respondent Director of Institute proceeded to pass an order dated 28.2.20222 to the effect that petitioner may apply as and when posts are advertised, however this order remained illusive for the simple reason, according to Mr. Tripathi, as post advertised for the purpose of direct recruitments provides for such qualification which ousts petitioners from eligibility zone. According to him, respondents while have put a bar of maximum age of 55 years on one hand, on the other hand the essential qualification is that one should have three years of regular clear service at Assistant Executive Engineer level whereas petitioners are only working as Assistant Engineer and Assistant Engineer (SG). 8. In view of above, the writ of certiorari is prayed for quashing the advertisement so far as post of Executive Engineer is concerned. 9. Countering the above submissions raised on behalf of the petitioner, Mr. 8. In view of above, the writ of certiorari is prayed for quashing the advertisement so far as post of Executive Engineer is concerned. 9. Countering the above submissions raised on behalf of the petitioner, Mr. Rohan Gupta, learned counsel for the IIT Kanpur has made two fold arguments : (i) In 2018 recruitment promotion rules notified on 27th November, 2018 as amended and modified on 28.5.2021 do provide for direct recruitment upon vacancies falling even in lateral entries by external candidates in both A and B groups, inasmuch as, new vacant positions can be created by the Board of Governors, the Apex body, by adopting resolution if contingency so arises as is in the present case, it was a mission mode recruitment drive to expedite a dedicated task. This power, according to Mr. Gupta, the board enjoys both under the recruitment rules and under the provisions of Institutes of Technology Act, 1961 that governs all the IITs in the country including IIT Kanpur in question; (ii) The relevant rule under the recruitment and promotion rules that gave such power to the Apex Body, namely Board of Governors and relevant provisions of the institutes of Technology Act, 1961 and consequential resolution adopted by the Board of Governors dated 23rd December, 2022 have not been challenged, and therefore, in the absence of any challenge, the rules and resolution, the consequential advertisement issued for direct recruitment on the post of Senior Superintending Engineer, Executive Engineer, therefore, cannot be faulted with. 10. Yet another argument has been advanced by Mr. Gupta that prescribing essential qualifications and age falls within the domain of the employer and the recruiting authority as employer is in a best position to assess the suitability for the job for which selection and appointments have to be made and, the Court cannot embark upon any enquiry by way of judicial review to prescribe which qualifications would be better qualification for the employer to provide as an essential qualification for the post upon which selection and appointment has to be made. This area according to Mr. Gupta, is an area of Technical Experts of field and the Court does not have those expertise and skills to assess exact suitability and eligibility vis-a-vis requirement for which selection and appointments have to be made. 11. In the above regard, Mr. This area according to Mr. Gupta, is an area of Technical Experts of field and the Court does not have those expertise and skills to assess exact suitability and eligibility vis-a-vis requirement for which selection and appointments have to be made. 11. In the above regard, Mr. Gupta has heavily relied upon the authority of the Supreme Court in the case of Dr. Thingujam Achouba Singh and Others v. Dr. H.N. Nabachandra Singh and Others, (2020) 20 SCC 312 . 12. Having heard learned counsel appearing for the respective parties and noticing arguments advanced on behalf of the respective parties to the lis, I find there to be arising following points and issues to be addressed : (a) Whether Board of Governors, IIT Kanpur is justified in adopting resolution dated 23rd December, 2022 to hold direct recruitment drive in respect of 5 posts of Executive Engineer to the disadvantage of the petitioners who claim departmental promotion; (b) Whether in absence of any challenge to the rules taking aid of which resolution dated 23rd December, 2022 has been adopted and whether in the absence of challenge to the resolution, the same can be held bad; and (c) Whether five posts of Executive Engineer advertised by respondents do fall under promotion quota. 13. The first and second points are interrelated in the sense that, if there is an authority vested under the rules with the Board of Governors, whether challenge or no challenge, the resolution will be valid and conversely if the Court finds there to be no such power under the rules vested with Board of Governors, resolution would get rendered null and void and the Court even in the absence of any challenge hold that to be so and consequential action even if not under challenge would become bad and can be struck down. 14. I proceed to examine the relevant recruitment and promotions rules to record findings as to the claim of the petitioners that there lies no such power with Board of Governors. Both the learned Advocates appearing for the respective parties do agree that recruitment and promotion rules, 2018, modifying earlier Rules, 2013 notified on 27th November, 2018 are the rules in existence and parties do agree that these rules came to be further modified and notified on 28th May, 2021 brought on record as Annexures CA 1,2 and 3 respectively). 15. Both the learned Advocates appearing for the respective parties do agree that recruitment and promotion rules, 2018, modifying earlier Rules, 2013 notified on 27th November, 2018 are the rules in existence and parties do agree that these rules came to be further modified and notified on 28th May, 2021 brought on record as Annexures CA 1,2 and 3 respectively). 15. The plea taken in the rejoinder affidavit is that Board of Governors is responsible only for general Superintendence and Control qua affairs of the institute but is not vested with powers to formulate or approve rules including rules and regulation for recruitment and laying down accordingly eligibility criteria etc. for selection and appointment upon faculty and non-faculty positions in the institute. A further plea taken in the rejoinder affidavit is that recruitment and Career Progression Scheme floated by the IIT Council, the top composite body for different IITs, wayback in the year 1999, would prevail as this authority is superior to the Board. Thus, it is pleaded that neither rules framed by the Board of the Governors, nor its resolution is enforceable. However, interestingly, in the writ petition, there is no such plea as to the validity of the rules and powers of the Board of Governors even though reliance has been placed and reference has been made to the Promotion Committee and chart of maintenance Staff of IWD (P-19), which is provided under the schedule of the promotion rules. It is equally important to notice that 2018 Rules have been only modified in a minor way vide notification issued on 28th May, 2021. The rules as notified on 28th May, 2021 vide its Rule 6 gives power to the Board to make direct recruitment upon posts falling in lateral entries both in Group-A and B category. Rules 6 of the rules referring to the ‘vacancies’ runs as under : “6. Vacancies: All the non-teacher/ non-academic posts in the institute are categorized into three groups (Group A, Group B and Group C). Categorization of various post into different groups is as given in Schedule-1. Under each group there will be a number of cadres, each cadre having a ladder with multiple levels of posts. The lowest post in a ladder will be called the ent4ry post and the remaining posts within a ladder will be called selection posts. Categorization of various post into different groups is as given in Schedule-1. Under each group there will be a number of cadres, each cadre having a ladder with multiple levels of posts. The lowest post in a ladder will be called the ent4ry post and the remaining posts within a ladder will be called selection posts. The direct recruitment will normally be done at the entry post in a ladder. However, in the interest of Institute work, lateral entry of external candidates may sometimes be permitted by Board for special needs under Groups A and B posts. Promotions of institute employees can be done to both entry and selection posts. However, promotions of institute employees to entry level posts will be vacancy based.” (emphasis added) 16. Upon bare reading of the aforesaid provisions, I find that Board has been vested with power to provide for direct recruitment even upon post that are prescribed not at entry level but by way of lateral entry. In this connection, it is necessary to refer to P-19 of the schedule of the Rules. The chart is reproduced : MAINTENANCE STAFF (IWD) ENTRY LEVEL Asst. Exe. Engg PB-3 Rs.15600-39100) Grade Pay 5400 Pay Matrix Level-10 Executive Engg PB-3 (Rs.15600-39100) Grade Pay 6600 Pay Matrix Level 11 Executive Engg PB-3 (Rs.15600-39100) Grade Pay 7600 Pay Matrix Level 12 PAY BAND CHANGE Executive Eng PB-4 (Rs.37400-67000) Grade Pay 8700 Pay Matrix Level 13 Executive Eng PB-4 (Rs.37400-67000) Grade Pay 8900 Pay Matrix Level 13 A Group-A Group-A ENTRY LEVEL Junior Engineer PB-2 (Rs.9300-34800) Grade Pay 4200 Pay Matrix Level 6 Senior Assistant Engineer (SG) PB-2 (Rs.9300-34800) Grade Pay 5400 Pay Matrix Level 9 Senior Assistant Engineer PB-2 (Rs.9300-34800) Grade Pay 4800 Pay Matrix Level 8 OR Senior Assistant Engineer (SG) PB-2 (Rs.9300-34800) Grade Pay 5400 Pay Matrix Level 9 GROUP CHANGE (FROM B TO A) Asst. Exe. Engg. PB-3 Rs.15600-39100) Grade Pay Rs.5400 Pay Matrix Level 10 Executive Engg. PB-3 (Rs.15600-39100) Grade Pay 6600 Pay Matrix Level 11 Group B Group A 17. The above chart shows that in Group-A category, the only entry level post is Assistant Executive Engineer, pay band 3, grade pay, 5400/- at pay matrix Level 10, and likewise in Group-B category, the Junior Engineer post at pay matrix level-6 is the post provided for entry level. The above chart shows that in Group-A category, the only entry level post is Assistant Executive Engineer, pay band 3, grade pay, 5400/- at pay matrix Level 10, and likewise in Group-B category, the Junior Engineer post at pay matrix level-6 is the post provided for entry level. The chart makes it clear that while Junior Engineer Level post is exclusively filled up by direct recruitment but post of Assistant Executive Engineer, which is an entry level post at pay matrix level-10 in group A can also be filled up by promotion from Group-B post. This is further supported by P-40 of the first schedule of the rules that provides for 50 per cent of the vacancies of Assistant Executive Engineer at pay matrix level 10 to be filled up by way of promotion from those Senior Assistant Engineers working at pay matrix level-8/9 with grade pay 4800/5400- respectively. Both these posts of Senior Assistant Engineer and Senior Assistant Engineer (SG) which are occupied by the petitioners presently, fall in pay band-2 category. One more thing is very clear from P-33 to the first schedule that even post of Assistant Engineer which is a lateral entry of Group-B category at pay matrix level-7 shall also be filled up both by way of direct recruitment and by way of promotion from lower grade. The chart does not show that post of Executive Engineer of pay band 3 at pay matrix level 11 and onwards upto pay matrix level 13-A are to be filled up by direct recruitment under the rules. Thus, in order to fill up these vacancies, if otherwise than promotion, the Board has to adopt a resolution in suppression to the rules for which power is very much prescribed under rule 6 (supra). Board has adopted resolution on 23rd December, 2022 to fill up 5 posts of Executive Engineer by direct recruitment. The power very much lies with Board and there should be no quarrel about. The only question is whether these rules framed are valid or not. 18. In support of his argument questioning competence of the Board of Governors to frame rules, learned counsel for the petitioner Mr. Tripathi has heavily relied upon Section 33 1 (b) of the IT Act, 1961 which is reproduced hereunder : “33. (1) It shall be the general duty of the Council to co-ordinate the activities of all the Institutes. 18. In support of his argument questioning competence of the Board of Governors to frame rules, learned counsel for the petitioner Mr. Tripathi has heavily relied upon Section 33 1 (b) of the IT Act, 1961 which is reproduced hereunder : “33. (1) It shall be the general duty of the Council to co-ordinate the activities of all the Institutes. (2) Without prejudice to the provisions of sub. section (1), the Council shall perform the following functions, namely: - (a) to advise on matters relating to the duration of the courses, the degrees and other academic distinctions to be conferred by the Institutes, admission standards and other academic matters; (b) to lay down policy regarding cadres, methods of recruitment and conditions of service of employees, institution of scholarships and freeships, levying of fees and other matters of common interest; (c) to examine the development plans of each Institute and to approve such of them as are considered necessary and also to indicate broadly the financial implications of such approved plans; (d) to examine the annual budget estimates of each Institute and to recommend to the Central Government the allocation of funds for that purpose; (e) to advise the Visitor, if so required, in respect of any function to be performed by him under this Act; and (f) to perform such other functions as are assigned to it by or under this Act.” (emphasis added) 19. The above provisions as contained under section 33-(1)(b) do provided for laying down policy regarding entries methods of recruitment conditions of service of employees etc. but question is what would be the legal position, if there are no such policies laid down. 20. I may here refer to Section 10,11 and 13 of the IT Act, 1961 that provide for Board of Governors, Senate and such other authorities as may be prescribed and declared by statutes. The constitution of Board and powers of Board under the relevant provisions are reproduced hereunder : 10. The following shall be the authorities of an Institute, (a) a Board of Governors; (b) a Senate; and (c) Such other authorities as may be declared by the Statutes to be the authorities of the Institute. 11. The constitution of Board and powers of Board under the relevant provisions are reproduced hereunder : 10. The following shall be the authorities of an Institute, (a) a Board of Governors; (b) a Senate; and (c) Such other authorities as may be declared by the Statutes to be the authorities of the Institute. 11. The Board of an Institute shall consist of the following persons, namely:- (a) the Chairman, to be nominated by the Visitor; (b) the Director, ex officio, (c) one person to be nominated by the Government of each of the States comprising the zone in which the Institute is situated, from among persons who, in the opinion of that Government, are technologists or industrialists of repute; (d) four persons having special knowledge or practical experience in respect of education, engineering or science, to be nominated by the Council; and (e) two professors of the Institute, to be nominated by the Senate. Explanation:- In this section, the expression "zone" means a zone as for the time being demarcated by the All-India Council for Technical Education for the purposes of this Act. 13. (1) Subject to the provisions of this Act, the Board of any Institute shall be responsible for the general superintendence, direction and control of the affairs of the Institute and shall exercise all the powers of the Institute not otherwise provided for by this Act, the Statutes and the Ordinances, and shall have the power to review the acts of the Senate. (2) Without prejudice to the provisions of sub-section (1), the Board of any Institute shall- (a) take decisions on questions of policy relating to the administration and working of the Institute; (b) institute courses of study at the Institute; (c) make Statutes; (d) institute and appoint persons to academic as well as other posts in the Institute; (e) consider and modify or cancel Ordinances; (f) consider and pass resolutions on the annual report, the annual accounts and the budget estimates of the Institute for the next financial year as it thinks fit and submit them to the Council together with a statement of its developments plans; (g) exercise such other powers and perform such other duties as may be conferred or imposed upon it by this Act or the Statutes. (3) The Board shall have the power to appoint such committees as it considers necessary for the exercise of its powers and the performance of its duties under this Act. (emphasis added) 21. According to aforesaid provisions, residuary power lies with Board, which is not provided elsewhere. The first statute and ordinances have to be framed vide Section 6(1) of the IT Act, 1961 and that power lies with both the Board and the Council both. Section 38-(c) provides that so long as statutes and ordinances are not framed for each of the institutes of colleges, the statute and ordinance of the Indian Institute of Technology, Kharagpur will prevail. 22. In total circumspect of the provisions as discussed above, it is clear that either rules are framed by the council as Apex Body on all India basis or Board for the IIT Kanpur, the provisions of the IIT Kharagpur provide for such conditions to which Rule 6 of the recruitment and promotion rules can be said to be repugnant, the rules as famed by the Board of Governors exercising power under Section 13(1) would prevail. 13(2)-c also empower the Board to frame statutes, therefore, taking recourse to the harmonious constructions of the provisions as contained under Section 13(1) and 13(2) c and 33(1) (b) and 38-(C) of the IT Act, 1961, it can safely be concluded that Board of Governors being Apex Body of the IIT Kanpur under the Act, 1961 is fully empowered to frame recruitment and promotions rules and since it has framed such rules right from 2013 onwards as amended Rules 2021, such rules are held to be valid. 23. As the argument has been advanced that All India Council has the general powers over and above institutes of Technology and the Act, 1961 does vest power in the IITs to inform Ministry of Human Resources and Development to create post by virtue of delegated power, executing this power a resolution as adopted by All India Council as item no. 40.4 placed before the Board date 19th October, 2009 is reproduced hereunder : “Item No. 40.4: Autonomy of the Institutes - financial, functional and managerial: The issue of autonomy is closely linked with the capacity of the institutions to raise their own resources. In order to suggest ways and means of achieving more autonomy, it was decided to constitute a Committee comprising Dr. In order to suggest ways and means of achieving more autonomy, it was decided to constitute a Committee comprising Dr. Anil Kakodkar, Chairman, BoG, IIT Bombay and four other members to be nominated by the Chairman to suggest a roadmap for the autonomy and future of the IITs. The Committee would inter alia examine the issue of increase in fees by the IITS in a gradual manner. While doing so, the interest of weaker sections of society i.e. SCs/STs/OBCs would be taken care of. It should be ensured that any student entering the IIT system should be able to avail educational loan and the same must be facilitated by the Institutes. The Committee could suggest an interest loan waiver scheme for students who continue to do research and take up teaching assignments. In fact a portion of the loan could be even considered for being written off for every year of teaching in a publicly funded institution in such a way that the entire loan could be written off if one has served in publicly funded institutions for more than 30 years or so. Any person who does Ph.D. must be supported. The Non Plan grants to be given to the IITs, which are in the process of being raised through the Block Grant scheme, should be linked to the actual students' strength. The ratio of B.Tech Post Graduate and Research students in the Institutes should be maintained at optimum levels, while affecting increase in students' strength. The Institutes should be entitled for matching grants from the Government in case they generate more resources through research projects from the industry, consultancy, donations from alumni and others etc. All these issues will be examined by the above Committee which will submit its report within 4 months and will also follow up on the implementation of its recommendations. It was also decided that flexibility would be given to the IITs for creation of posts. ITs may be delegated the power to create posts subject to the ratio of 10:1:1.1 between students, faculty and non-faculty. However the ITs would be required to inform the Ministry while creating the posts under these deligated powers. Addl. Secretary (MHRD) was asked to get this processed for issue of appropriate orders in this regard, after obtaining the approval of the Ministry of Finance. The Directors of Ilts expressed that there was a need for more laboratory staff. However the ITs would be required to inform the Ministry while creating the posts under these deligated powers. Addl. Secretary (MHRD) was asked to get this processed for issue of appropriate orders in this regard, after obtaining the approval of the Ministry of Finance. The Directors of Ilts expressed that there was a need for more laboratory staff. AS & FA stated that clarifications have been issued to the ITs that requirement of increased number of technical staff due to OSC expansion only could be allowed even if the ratio exceeds the norms of 1:1.1 between faculty to non-faculty staff. It was also clarified that for the purpose of new cars for the Directors of new ITs, the BoG of the concerned Institute was competent to approve. It was also decided that every II'T would present its vision document at the Retreat proposed in January, 2010.” 24. Mr. Gupta, has argued that rules does not provide post of Superintendent Engineer under, and therefore, resolution was rightly adopted by the Board to create a post as required. He has argued that besides there being residuary power with the Board by virtue of which it provided resolution dated 23rd December, 2022 there being residuary power with the Council under the IT Act, 1961, by virtue of Section 2-b of Section 33 of the IT Act, 1961 and so it rightly adopted resolution. So even creation of post of Superintending Engineer under the resolution adopted by the Board of Governors is a valid act within the ambit and scope of powers vested in it. 25. In view of above, in respect of both point nos. 1 and 2, I hold that Board of Governors of IIT Kanpur is justified in framing recruitment Rules 2018 as modified/ amended in 2021 and since Rule 6 of rules provides for powers for the direct recruitment even upon post falling in lateral entries (P-19) that includes post of Executive Engineer, the resolution adopted by it to make a direct recruitment upon such post dated 23rd December, 2022 is also valid. Besides the above, I also find that petitioners are not eligible for the post of Executive Engineer for the simple reason that they are not working as Assistant Executive Engineer. 26. Besides the above, I also find that petitioners are not eligible for the post of Executive Engineer for the simple reason that they are not working as Assistant Executive Engineer. 26. So for the post of Executive Engineer is concerned, there should be no quarrel because Rules vide P-19 to the schedule make post of Executive Engineer at pay matrix level-11 in the Group-A to be filled up by promotion only from Assistant Executive Engineer, pay matrix level 10 and the essential qualification under the advertisement is also three years of regular clear service at Assistant Executive Engineer, level-10 or equivalent level. So essential qualification prescribed under the advertisement, rules are same. 27. Under the circumstances, therefore, petitioners cannot question the advertisement as far as post of Executive Engineer is concerned because they have nothing to put on stake, being not eligible even by way of promotion upon the posts in question. There is no prayer in the writ petition seeking promotion to the post of Assistant Executive Engineer, so no relief as such can be granted to promote them first as Assistant Executive Engineer if lying vacant then to direct to consider their claim for the post of Executive Engineer. 28. The question of consideration of age would have arisen had petitioners been working at pay matrix level-10 which is not a case in hand even otherwise prescribed qualification is a pure administrative policy decision of employer either by framing rules or otherwise by executing instructions to be meet requirements as per suitability required. 29. In my above view, I find support from paragraph 16 of the judgment of the Supreme Court in the case of Dr. Thingujam Achouba Singh and Others (Supra) Paragraph 16 runs as under : “16. So far as relaxation of upper age-limit, as sought by the petitioners in one of the writ petitions is concerned, the High Court has directed the competent authority and Executive Council of the Society to consider for providing such relaxation clause. We fail to understand as to how such direction can be given by the High Court for providing a relaxation which is not notified in the advertisement. While it is open for the employer to notify such criteria for relaxation when sufficient candidates are not available, at the same time nobody can claim such relaxation as a matter of right. We fail to understand as to how such direction can be given by the High Court for providing a relaxation which is not notified in the advertisement. While it is open for the employer to notify such criteria for relaxation when sufficient candidates are not available, at the same time nobody can claim such relaxation as a matter of right. The eligibility criteria will be within the domain of the employer and no candidate can seek as a matter of right, to provide relaxation clause.” 30. Admittedly, there is no challenge to the rules. The pleading in the writ petition are absolutely silent about validity of these rules. In fact these rules have though been not annexed with writ petition but a particular table has been annexed which is P-19, which is provided under the schedule of the recruitment and selection Rules 2018 amended in 2021. This table has been relied upon by the petitioner to take the plea that post in question is a promoted post. 31. In the rejoinder affidavit although plea has been taken vide paragraph 8 that IIT Council shall be laying down the rules of recruitment shall be providing for conditions of service as per Institutes of Technology Act, 1961, but neither any policy has been annexed or even referred to by the petitioner in the rejoinder affidavit, nor even recruitment and Career Progression Scheme as referred to in paragraph 8 of the rejoinder affidavit has been brought on record. 32. In the same judgment of Dr. Thingujam Achouba Singh and Others (Supra), the Court has held merely because rules are not in public domain notifying it, cannot itself be a ground to challenge and further if the rules are not challenged the Court will not embark upon an enquiry as to the validity of such rules. Vide paragraph 13 and 14, the Court has held thus : “13. At the outset, it is to be noticed that though, in none of the writ petitions, Rules governing appointment to the post of Director was under challenge, the High Court has gone into the validity of the Rules, as amended, and held that amendments to the Rules were not carried out by following the Rules, Regulations and Bye-laws of the Society. The specific plea of the respondent authorities in the writ petitions, that there is no challenge to validity of the Rules but same has been brushed aside by the High Court by merely stating that such an objection is of technical nature. At this stage, it is relevant to note that such objection raised should not have been brushed aside by the High Court by holding that such objection is of a technical nature. In all these writ petitions in which common order [H. Nabachandra Singh v. Union of India, 2017 SCC OnLine Mani 52] is passed by the High Court, validity of advertisement dated 16-8-2016 alone was under challenge. We are of the view that the High Court has committed an error in going into the validity of the Rules, in absence of any challenge to the same. In any event, it was the case of the respondent authorities that the Rules governing appointment were amended by following the Rules and such amendment was also approved by the competent authority, of Ministry of Health & Family Welfare. 14. Further, the fact of not notifying the amended Rules has also been made basis for grant of relief by the High Court. In this regard, the High Court has held that not notifying the amended Rules would strike at the root of the amendment process of the recruitment rules, as such, unless such Rules are notified, the same cannot be enforced. It appears from the impugned order itself that it was the specific plea in the counter-affidavit filed before the High Court that the said Rules were not framed under Article 309 of the Constitution of India and further there is no specific provision in the Rules, Regulations and Bye-laws of RIMS for notifying the same. It is true that in a public institution, rules are required to be made available, but at the same time not notifying to public at large cannot be the ground to invalidate the notification, in the absence of any provision to that effect in the Bye-laws of the Society or the Rules and Regulations framed for recruitment to the post of Director.” 33. Coming to second point as to whether these five posts would have fallen in promotion quota, suffice it to say that since these are lateral positions and the Board of Governors is vested with power to fill up within vacancies by direct recruitment regarding, under rule 6, even if these vacancies were meant to be filled up by promotion, the resolutions adopted by the Board to meet special exigency cannot be faulted with. 34. Thus, I do not find any good ground to quash the advertisement in question. Writ petition fails and is accordingly dismissed with no order as to cost.