JUDGMENT & ORDER : (S. K. Medhi, J.) The challenge in all these three writ appeals being identical, the same are taken up together for analogous hearing and are disposed of by this common judgment and order. Suffice it to mention that Writ Appeal No. 28 (AP) of 2024 and Writ Appeal No. 35 (AP) of 2024 arises out of a judgment dated 31.08.2024. It may further be mentioned that though two appeals have been preferred, they arise from the same batch of petitioners who had filed WP(C) 149 (AP) of 2023. In WA No.35 (AP) of 2024, 6 (six) of the petitioners have joined together, while the remaining petitioner has preferred WA No. 28 (AP) of 2024. Insofar as WA No.01 (AP) of 2025 is concerned, the same has been preferred against a judgment dated 19.12.2024 which, however, was delivered by following the earlier judgment dated 31.08.2024. The appellants are the writ petitioners. 2. Before going into the issues which have arisen for adjudication, the facts in brief, as projected in the writ petitions are given hereinbelow. For the sake of convenience, the facts are stated as per the writ appeals. WA No.35 (AP) of 2024 3. In this appeal, there are 6 (six) appellants who were part of the writ petitioners in WP(C) 149 (AP) of 2023. It is contended that the appellants were appointed as Junior Engineers (Electrical) in the Department of Power during the period 1994-1997 and had become eligible for promotion to the post of Assistant Engineer on completion of the qualifying length of service. However, the Departmental Promotion Committee (DPC) meetings were not held, for which the petitioners were deprived of their regular promotion. Be that as it may, the petitioners were promoted on an officiating basis to the post of Assistant Engineer during the years 2008–2011 and were given regular promotion in the year 2022. However, the prayer for granting retrospective effect to their promotion was declined and, accordingly, the writ petition was filed which, however, was dismissed. 4. It is contended that as on 24.07.2012, 11 (eleven) nos. of Assistant Engineers in the Department who were senior to the appellants and had been promoted to the post of Assistant Engineer on an officiating basis during the year 2007–2008, were recommended by the DPC for regularisation with retrospective effect from the date of their officiating promotion. 4. It is contended that as on 24.07.2012, 11 (eleven) nos. of Assistant Engineers in the Department who were senior to the appellants and had been promoted to the post of Assistant Engineer on an officiating basis during the year 2007–2008, were recommended by the DPC for regularisation with retrospective effect from the date of their officiating promotion. For the purpose of regularisation, 8 (eight) posts of Assistant Engineer under the direct recruitment quota were converted to the promotion quota as a one-time relaxation vide order dated 17.03.2008. On 23.11.2011, an advertisement was issued for filling up 20 (twenty) nos. of posts of Assistant Engineer by direct recruitment and, accordingly, to accommodate such direct recruits, the appellants were reverted to the post of Junior Engineer. Consequently, vide order dated 18.07.2013, 20 (twenty) nos. of Assistant Engineers, including respondent Nos. 5 to 24 were appointed as direct recruits pursuant to the advertisement dated 23.11.2011. The appellants were, however, reinstated to the post of Assistant Engineer on an officiating basis vide order dated 29.07.2013, which was made effective from the date of reversion, i.e., 17.07.2013. It is contended that, in that view of the matter, there was no break in their service as Assistant Engineers on an officiating basis. 5. The writ petitioners/appellants had been representing from time to time for regularisation, which, however, was not considered. In the meantime, three of the appellants, namely appellant nos. 4, 5 and 6 had instituted WP(C) 379 (AP) of 2013, wherein this Court vide judgment and order dated 24.11.2015 directed holding of a DPC within four months and consideration of their cases along with other similarly situated persons. Subsequently, on 23.06.2022, the appellants were promoted to the post of Assistant Engineer on a regular basis on the recommendation of the DPC, but with effect from 10.06.2022. The claim of the petitioners to grant retrospective effect to their promotion from the date of their officiating appointment was, however, negated by the learned Single Judge on the ground that there were no vacancies available at the relevant point of time. 6. The claim of the petitioners to grant retrospective effect to their promotion from the date of their officiating appointment was, however, negated by the learned Single Judge on the ground that there were no vacancies available at the relevant point of time. 6. Shri D. Mazumdar, learned Senior Counsel, assisted by Shri P. Borah, learned counsel for the appellants has submitted that the vacancy position was clear and that the total number of vacancies in the cadre of Assistant Engineers during the period 2008–2012 was 36 (thirty six), out of which 8 (eight) vacancies of the direct recruitment quota were earlier converted to the promotional quota. Therefore, 28 (twenty eight) vacancies were existing and, by the ratio of 50:50, out of those 28 (twenty eight), 14 (fourteen) posts were left for the promotional quota. In that view of the matter, he contends that the finding of the learned Single Judge that regularisation from the date of officiating appointments could not have been made is factually incorrect. The learned Senior Counsel has also drawn the attention of this Court to the aspect of continuous service, which is a relevant criterion for directing regularisation. In this regard, he has placed reliance on the case of Direct Recruit Class-II Engineering Officers’ Association v. State of Maharashtra , reported in (1990) 2 SCC 715 , and the relevant principles are extracted hereinbelow: “44. To sum up, we hold that: (A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. (B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted. (C) …” 7. (B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted. (C) …” 7. He has also submitted that in the instant appeal, the IA(C)43(AP)2026 had to be filed inasmuch as a notification dated 16.01.2026 has been issued whereby it has been notified that the DPC would be held soon for further promotion from the post of Assistant Engineer to Executive Engineer, for which APARs have been called for. He has also submitted that on 29.01.2026, an inter se seniority list was published, which, however, contains a clause that the same would be subject to the outcome of the writ petition. He has submitted that if such seniority list is acted upon in the meantime, grave prejudice would be caused to the appellants. The learned Senior Counsel has further submitted that the affidavit-in-opposition filed by the Department would show that vacancies had existed for which a direction for granting retrospective effect could have been issued. However, the learned Single Judge had drawn a presumption without any factual basis that there were no vacancies simply on the strength of certain office notes obtained by the private respondents by means of an RTI application. He has submitted that office notes cannot take the form of an order and in view of the categorical stand of the Department regarding existence of vacancies, such a course could not have been adopted by the learned Single Judge. WA No.28 (AP) of 2024 8. Shri R. Saikia, learned counsel for the appellant in the instant case has clarified that the present appellant was one of the writ petitioners in WP(C) 149 of 2023, who, however, has preferred this appeal separately. He has submitted that the appellant was appointed as a Junior Engineer on 07.10.1994 and on 27.02.2009, he was promoted as Assistant Engineer on an officiating basis against a deputation vacancy. Subsequently, the writ petitioner was given the pay scale of Assistant Engineer. The deputationist in whose vacancy the petitioner was appointed was permanently absorbed in the Hydropower Department by an order dated 16.05.2012 with effect from 27.02.2009. Subsequently, the writ petitioner was given the pay scale of Assistant Engineer. The deputationist in whose vacancy the petitioner was appointed was permanently absorbed in the Hydropower Department by an order dated 16.05.2012 with effect from 27.02.2009. He has further submitted that on an earlier instance, the petitioner was reverted to the post of Junior Engineer, which was the subject matter of challenge in WP(C) 428 (AP) of 2008. In accordance with the direction of this Court, the petitioner was, however, reinstated as Assistant Engineer on 24.06.2009. 9. He has submitted that a DPC was conducted on 24.07.2012 to regularise 8 (eight) promotees who were given officiating promotion against the direct recruitment quota. Among those eight persons, one Shri Tajong Messar at serial No. 4 had expired and, in effect, seven persons were regularised. It is submitted that no DPC was convened thereafter despite representations being filed. He has submitted that as on 17.07.2013, 18 (eighteen) officiating promotees were reverted back, which did not include the petitioner, and in any case those candidates were reinstated again on 02.09.2013. On 04.04.2013, 20 (twenty) direct recruits were appointed, but there are 7 (seven) other Departments and only 13 (thirteen) belong to the Electrical Division. He has submitted that the petitioner was never reverted to the post of Junior Engineer and has been in continuous service on an officiating basis as Assistant Engineer and, in view of the existence of vacancies, the claim to be granted benefits of promotion from the date of his officiating appointment is justified. He has also relied upon the case of Union of India & Ors. Vs. N. R. Banerjee & Ors., reported in (1997) 9 SCC 287 . WA No.01 (AP) of 2025 10. Shri H. Lampu, learned counsel has appeared for the appellant in this case, whose writ petition was dismissed vide judgment and order dated 19.12.2024 based on the earlier judgment and order dated 31.08.2024 passed in WP(C) 149 (AP) of 2023. It is submitted that the petitioner is the senior-most amongst the Junior Engineers in the Department and in his writ petition, there were no private respondents. He has submitted that on 27.05.2022, there was a meeting of the DPC which recommended for regularisation of the appellant/petitioner and for further promotion to the post of Executive Engineer. He has submitted that on 21.01.1994 the appellant was appointed as Junior Engineer. He has submitted that on 27.05.2022, there was a meeting of the DPC which recommended for regularisation of the appellant/petitioner and for further promotion to the post of Executive Engineer. He has submitted that on 21.01.1994 the appellant was appointed as Junior Engineer. After completion of the required length of service, the petitioner became eligible for promotion to the post of Assistant Engineer and, accordingly, on 27.02.2008, he was granted officiating promotion as Assistant Engineer against the direct recruitment quota. The said promotion was, however, withdrawn, for which the appellant had earlier filed a writ petition challenging such withdrawal. Vide an order dated 24.06.2009, the petitioner was, however, reinstated as per the direction of the High Court. He has also submitted that the deputation vacancy in which the petitioner was promoted was absorbed with effect from 2009 and in that line, he has submitted that the vacancy of Assistant Engineer in which he was promoted was an existing vacancy from 2009 itself. He has further submitted that as on 2012, a DPC was conducted and two persons junior to the petitioner were regularised with retrospective effect. The petitioner had accordingly filed WP(C) 11 of 2013 which was, however, dismissed on 24.09.2013 as the private respondents in that case were held to be differently placed namely, they being degree holders. However, from 2012 to 27.05.2022, no further DPC was held. On 11.11.2021, an order was passed to reckon the seniority of the petitioner which, however, was not put to challenge by anybody. In the provisional seniority list, the petitioner is shown at serial No. 2. The grievance of the petitioner is that the failure to hold the DPC in time has delayed his substantial promotion and has adversely affected his seniority. 11. It is submitted that the writ petitioner was eligible in all respects and vacancies were existing and, for the negligence of the Department in not holding the DPC, the petitioner cannot be made to suffer. He has submitted that, if not from 2009 when the petitioner was given officiating promotion, at least from 2012 when the deputationist was absorbed in the vacancy in which the petitioner was appointed, his seniority should be reckoned. He has also gone to the extent that even notional promotion may be granted from such date. 12. He has submitted that, if not from 2009 when the petitioner was given officiating promotion, at least from 2012 when the deputationist was absorbed in the vacancy in which the petitioner was appointed, his seniority should be reckoned. He has also gone to the extent that even notional promotion may be granted from such date. 12. Shri Perme, learned Standing Counsel for the Power Department has, however, submitted that the aspect of lack of vacancy which was taken into consideration by the learned Single Judge may not be strictly in accordance with the version of the Department given in the affidavit-in-opposition filed on 20.05.2024 in WP(C) 149 of 2023. By drawing the attention of this Court to the said affidavit, he has submitted that till 2005, the ratio of 50:50 was maintained between direct recruits and promotees and the next DPC was held in 2012 which was meant for regularising 8 (eight) promotees who were given officiating promotion against direct recruitment quota in 2008. He has submitted that the posts after 17.03.2008 were not the subject matter of consideration of the said DPC. He has drawn the attention of this Court to the DPC proceedings dated 24.07.2012 annexed to the records and also to the affidavit-in-opposition wherein a table of vacancies and details as to how the vacancies had arisen have been stated. He has submitted that 36 (thirty) vacancies existed and this aspect was misconstrued by the learned Single Judge. 13. On the other hand, Shri Panging, learned counsel for respondent Nos. 5 to 24 in WA No. 28 (AP) of 2024 as well as WA No.35 (AP) of 2024 has strenuously opposed the appeals and has submitted that the impugned judgment dated 31.08.2024 has been passed based on the materials on record and does not require any interference. 14. At the outset, he has submitted that the projection made that there are different segments of Engineering in the cadre of Assistant Engineer in the Power Department, as projected by the petitioners, is incorrect. He has submitted that it is a common cadre and there is no difference between Electrical Engineer, Mechanical Engineer, etc. He has drawn the attention of this Court to the inter se seniority list dated 29.01.2026 which includes the names of all incumbents irrespective of whether they are in the Electrical, Mechanical or Computer Division of the Power Department. He has submitted that it is a common cadre and there is no difference between Electrical Engineer, Mechanical Engineer, etc. He has drawn the attention of this Court to the inter se seniority list dated 29.01.2026 which includes the names of all incumbents irrespective of whether they are in the Electrical, Mechanical or Computer Division of the Power Department. He has submitted that the vacancy position as on 30.08.2011 was 23 (twenty three). However, taking into consideration that earlier there was backlog in the direct recruitment quota, 20 (twenty) posts were advertised on 23.11.2011, which were accordingly, filled up on direct recruitment basis. On 23.08.2009, the appellant nos. 2 and 3 were given officiating promotion, which, however, was subject to the filling up of the posts by direct recruitment. Similarly, on 16.06.2010, the appellant no. 1 was given officiating promotion and on 07.07.2011 appellant nos. 4, 5 and 6 were given officiating appointments. 15. Shri Panging, learned counsel has also drawn the attention of this Court to the minutes of the DPC dated 24.07.2012 which recorded that as on 17.03.2008, 8 (eight) posts were converted from direct recruitment quota to promotion quota. He has submitted that if vacancies in the promotion quota were available, there was no requirement to convert posts from the direct recruitment quota. He has also submitted that three promotions were made which were unsuccessfully challenged. So far as WA No.28 of 2014 is concerned, he has submitted that the writ petitioner was given promotion on 27.08.2008, whereas in WA No. 35 of 2014, the appellants were given promotion on 23.08.2009, 16.06.2010, and 07.07.2011. He has submitted that the affidavit filed by the department contains incorrect facts which are not in sync with the data obtained by his clients under the Right to Information Act. He has also submitted that no rejoinder affidavit was filed by the Department to his affidavit-in-opposition. 16. In support of his submissions, Shri Panging has relied upon the case of Union of India & Anr. v. Manpreet Singh Poonam & Ors. , reported in (2022) 6 SCC 105 , wherein it has been laid down that mere existence of vacancies does not vest any right to promotion. He has also relied upon the case of Bihar State Electricity Board & Ors. v. Manpreet Singh Poonam & Ors. , reported in (2022) 6 SCC 105 , wherein it has been laid down that mere existence of vacancies does not vest any right to promotion. He has also relied upon the case of Bihar State Electricity Board & Ors. v. Dharamdeo Das , reported in 2024 SCC Online SC 1768 , wherein it has been laid down that no retrospective promotion can be granted. Reliance has been placed on the case of State of Bihar v. Akhouri Sachindra Nath & Ors. , reported in 1991 Supp (1) SCC 334 , wherein it has been laid down that retrospective promotion cannot be given which adversely affects the rights of others. He has submitted that though the petitioners have relied upon the case of Union of India v. N. R. Banerjee (supra), the same would not be applicable in the facts and circumstances of the present case, as in those cases there was a stipulation regarding availability of pre-existing vacancies. He has also drawn attention of this Court to a judgment reported in (2014) 6 GLR 152 (Tanzin Gombu Khrime & Ors. Vs. State of AP) , wherein it has been laid down that in the absence of any provision in the recruitment rules for granting retrospective effect, the same is impermissible. 17 . Shri Panging, the learned counsel has referred to the findings of the learned Single Judged recorded in paragraph 34 of the judgment as per which, the stand of the State respondents in the affidavit was not supported by the record made available and a contrary picture had emerged. 18. Shri Perme, learned Standing Counsel in his rejoinder has however clarified that the vacancy position was clearly explained in details in the affidavit filed by the Department. 19. Shri Mazumdar, learned Senior Counsel in his rejoinder has submitted that the file noting annexed in the affidavit by the private respondents were not for the purpose of ascertaining the vacancy position and the connected pleadings in this regard are wholly inadequate. On the other hand, in the Department affidavit, the entire details of the vacancy position have been given and there is no reason to disregard the same. 20. The rival contentions advanced by the learned counsel for the contesting parties have been duly considered and the materials placed before this Court have been carefully examined. 21. On the other hand, in the Department affidavit, the entire details of the vacancy position have been given and there is no reason to disregard the same. 20. The rival contentions advanced by the learned counsel for the contesting parties have been duly considered and the materials placed before this Court have been carefully examined. 21. The proposition of law has been laid down by the Hon’ble Supreme Court in the case of Direct Recruit II (supra), which have been extracted above. The position have also been explained by the subsequent decision rendered in the case of State of West Bengal & Ors. Vs. Aghore Nath Dey, reported in (1993) 3 SCC 371 . The settled position of law is that the seniority can be reckoned from the date of officiating appointment if such appointment was done by following the rules and in an existing vacancy. 22. In the instant bunch of appeals, there is a dispute with regard to the existence of vacancy in the promotional quota in the rank of Assistant Engineer of the Department at the time of giving officiating promotion to the appellants. As indicated above, the learned Single Judge in the impugned judgment dated 31.08.2024 had however, proceeded on the basis that though an affidavit was filed by the Department acknowledging availability of vacancies at the relevant time, the records made available did not support the same. 23. On that point, the materials on record have been carefully examined. The records which the learned Single Judge has referred are the file noting which the respondent nos. 5 to 24 had annexed to the affidavit-in-opposition. A perusal of the same, would however, show that certain data were extracted in terms a direction of the Secretary (Power) on 30.08.2011 which was mainly for the purpose of initiating a recruitment drive for unemployed youths. We are also of the opinion that file noting cannot take the form of any direction or order and in this connection, one may gainfully refer to the case of Bachhittar Singh Vs. the State of Punjab , reported in 1963 AIR 395 , wherein a Constitutional Bench of the Hon’ble Supreme Court has laid down as follows: “The question, therefore, is whether he did in fact make such an order. Merely writing something on the file does not amount to an order. the State of Punjab , reported in 1963 AIR 395 , wherein a Constitutional Bench of the Hon’ble Supreme Court has laid down as follows: “The question, therefore, is whether he did in fact make such an order. Merely writing something on the file does not amount to an order. Before something amounts to an order of the State Government two things are necessary. The order has to be expressed in the name of the Governor as required by cl. (1) of Art. 166 and then it has to be communicated. As already indicated, no formal order modifying the decision of the Revenue Secretary was ever made. Until such an order is drawn up the State Government cannot, in our opinion, be regarded as bound by what was stated in the file. As along as the matter rested with him the Revenue Minister could well score out his remarks or minutes on the file and write fresh ones.” 24. We have also seen that the Department in its affidavit filed on 20.05.2024 has, in an elaborate and detail manner given the vacancy position in paragraph 4(III). The said details are with regard to the vacancy position from 31.08.2008 to 31.03.2012. In the remark column, the details of the orders of promotion/deputation/retirement/deaths, etc. have been given. Under such circumstances, perhaps there was no occasion on the part of the learned Single Judge to come to a finding that the Department’s affidavit was not matching with the file noting dated 14.09.2011. 25. Rejecting the claim of the appellants/writ petitioners only on the basis of certain file noting may not be proper when the Department affidavit is clear on the aspect of availability of vacancy. As noted above, the principle of law laid down is that if vacancy was available, the seniority of an incumbent has to be reckoned from the date of officiating appointment. 26. In view of the aforesaid facts and circumstances, we are of the view that the matter is required to be reconsidered by the Department. The Department is accordingly directed to re-do an exercise with regard to the availability of vacancy from the date of officiating appointment of the appellants and if such vacancies in the promotional quota in the cadre of Assistant Engineers were found to be existing, the appellants be given the benefit of seniority from such date. The Department is accordingly directed to re-do an exercise with regard to the availability of vacancy from the date of officiating appointment of the appellants and if such vacancies in the promotional quota in the cadre of Assistant Engineers were found to be existing, the appellants be given the benefit of seniority from such date. It is needless to say that the appellants, if found to be senior, they would be entitled only to the notional benefits. 27. The aforesaid exercise be undertaken and completed expeditiously and preferably within an outer limit of 90 (ninety) days from the date of receipt of a certified copy of this order. 28. The impugned judgments dated 31.08.2024 and 19.12.2024 accordingly stand interfered with. 29. The appeals are accordingly allowed to the extent indicated above. 30. No order as to cost(s).