M. Choudhury, J.,1. This intra-court appeal is directed against the judgment and order dated 27.02.2020 passed by the learned Single Judge in the writ petition, W.P.(C) No. 4972/2015. By the said judgment and order dated 27.02.2020, the learned Single Judge finding no merit in the writ petition preferred by the writ appellant-writ petitioner, has dismissed the same.2. In the writ petition, the appellant-petitioner had sought for a writ in the nature of mandamus seeking a direction to the respondent authorities to grant him pay scale of the Senior Scientific Officer at Rs. 8,100/- - Rs. 13,025/- p.m. w.e.f. 12.12.1999 as per the Draft Service Regulations, 1996 and a writ in the nature of certiorari by holding that the office order dated 25.03.2003 passed by the Director, Assam Science Technology and Environment Council whereby the scale of pay in the posts of Deputy Administrative Officer and Deputy Finance & Accounts Officer was re-fixed purportedly in the next higher scale of pay of Rs. 8,100/- - Rs. 13,025/- w.e.f. from 01.12.2002 as illegal and null and void.3. In the writ petition, it was projected on behalf of the appellant-petitioner that pursuant to a selection process initiated with an advertisement published in 1994, the appellant-petitioner came to be appointed as Scientific Officer in Assam Science Technology and Environment Council (‘ASTEC’, for short) by an order of appointment dated 12.12.1994 in the scale of pay of Rs. 2,275/- - Rs. 4,450/- p.m. plus other allowances as admissible under the rules. The appellant-petitioner had referred to an advertisement published by the ASTEC in the year 1998 whereby the ASTEC had, inter alia, invited applications for filling up one post of Deputy Administrative Officer and one post of Deputy Finance & Accounts Officer, both purportedly also in the pay scale of Rs. 2,275/- - Rs. 4,450/-. After the selection process undertaken pursuant the said advertisement, the respondent no. 3 (Atanu Kumar Goswami) and the respondent no. 4 (Sri Khargeswar Goswami) came to be appointed as the Deputy Administrative Officer and the Deputy Finance & Accounts Officer in the ASTEC by orders of appointment dated 23.07.2001. It was the case of the appellantpetitioner that in the orders of appointment issued in respect of the respondent no. 3 and respondent no. 4 the pay scale of the Deputy Administrative Officer and the Deputy Finance & Accounts Officer was mentioned as Rs. 5,725/- - Rs. 11,825/- which was the revised scale for the pre-revised scale of pay of Rs. 2,275/- - Rs. 4,450/- but by a subsequent office order dated 25.03.2003 issued under the hand of the Director, ASTEC, the scale of pay of Deputy Administrative Officer and Deputy Finance & Accounts Officer of ASTEC came to be re-fixed at Rs. 8,100/- - Rs. 13,025/- p.m., instead of Rs. 5,725/- - Rs. 11,825/-. It was consequently ordered that the respondent no. 3 and the respondent no. 4 would draw salary as per the re-fixed pay scale w.e.f. 01.12.2002 with pay fixation based on their date of joining. The Draft Service Regulations, 2010 came to be notified as “the Assam Science Technology and Environment Council’s (ASTEC) Regulations 2010” on 12.02.2013 for regulating the recruitment and conditions of service of the persons appointed to the ASTEC service with immediate effect. In the ASTEC Regulations, 2010 the pay scale of Deputy Administrative Officer and the Deputy Finance & Accounts Officer was mentioned as Rs. 8,100/- - Rs. 13,025/-.4. Aggrieved by the aforesaid developments, more particularly, the re-fixation of pay scale for the post of Deputy Administrative Officer and the Deputy Finance & Accounts Officer benefiting the respondent no. 3 and the respondent no. 4, the appellant-petitioner stated to have filed representations on 09.12.2014 and on 05.05.2015 respectively. The prime contention made by the appellant-petitioner in those representations was to the effect that the pay scale in respect of the post of Deputy Administrative Officer and the Deputy Finance & Accounts Officer was shown in the advertisement as Rs. 2,275/- - Rs. 4,450/- (pre-revised) / Rs. 5,725/- - Rs. 11,825/- (revised). But before completion of 2 years of service, the respondent authorities had re-fixed the scale of pay of Deputy Administrative Officer and the Deputy Finance & Accounts Officer at Rs. 8,100/- - Rs. 13,025/- (revised) without any approval of the competent authority. On the contrary, the appellant-petitioner was promoted to the post of Senior Scientific Officer in the pay scale of Rs. 8,100/- - Rs. 13,025/- (revised) vide a resolution of the Governing Body of ASTEC taken in its 9th meeting held on 07.04.2005 after putting in 11 years of regular service. It was the contention of the appellant-petitioner that according to the Draft Service Regulations, 1996, the Scientific Officer was entitled to be promoted as Senior Scientific Officer after putting 5 years of regular service and thus, the appellant-petitioner was entitled to draw pay scale of Senior Scientific Officer w.e.f. 14.12.1999. When his afore-mentioned representations were not considered, the appellant-petitioner approached this Court by filing the above writ petition in the year 2015 seeking the reliefs, mentioned above.5. We have heard Mr. P. Katakey, learned counsel for the appellant-petitioner. We have also heard Mr. T.C. Chutia, learned State counsel for the respondent no. 1; Mr. P.J. Saikia, learned counsel for the respondent no. 2, ASTEC and Mr. D. Das, learned Senior counsel, assisted by Mr. R. Sharma, learned counsel for the respondent no. 4. Though the respondent no. 3 (Atanu Kumar Goswami) was represented by learned counsel before the learned Single Judge, it has been stated at the bar that the respondent no. 3 (Atanu Kumar Goswami) had expired in the meantime and by order dated 28.09.2020, the name of the respondent no. 3 was struck off from the array of respondents in the writ appeal.6. In this writ appeal, Mr. Katakey, learned counsel for the appellant-petitioner though has urged both the points he has, however, laid more stress on his second limb of submission that under the Service Regulations of ASTEC, a Scientific Officer becomes entitled to be promoted as Senior Scientific Officer on completion of 7 years of regular service as Scientific Officer. For that purpose, he has referred to the Draft Service Regulations, 1996, more particularly, Regulation 11 r/w Schedule III thereof. It is his contention that according to Schedule III of the Draft Service Regulations, 1996 with regard to eligibility for promotion to the post of Senior Scientific Officer, one has to complete 7 years of regular service as Scientific Officer and since the appellant-petitioner had completed 7 years of regular service on 11.12.2001 his assessment should have been completed prior to that date but the Governing Body held its meeting only on 07.04.2005. On the other hand, he with regard to the first point, has submitted that the authorities in the ASTEC had wrongly re-fixed the pay scale of Deputy Administrative Officer and the Deputy Finance & Accounts Officer at Rs. 8,100/- - Rs. 13,025/- (revised) by office order dated 25.03.2003 instead of Rs. 2,275/- - Rs. 4,450/- (pre-revised) / Rs. 5,725/- - Rs. 11,825/- (revised).7. Mr. Saikia, learned counsel appearing for the respondent ASTEC and Mr. Das, learned Senior counsel appearing for the respondent no. 4 have vehemently objected to the aforesaid contentions of the learned counsel for the appellant-petitioner. Both of them have, in unison, submitted that the post of Scientific Officer on one hand and the posts of Deputy Administrative Officer and the Deputy Finance & Accounts Officer on the other hand are not comparable. The pay scale of Deputy Administrative Officer and the Deputy Finance & Accounts Officer in the advertisement published in the year 1998 was wrongly mentioned as Rs. 2,275/- - Rs. 4,450/- (pre-revised) instead of actual pay scale of Rs. 2,975/- - Rs. 4,750/- (pre-revised) / Rs. 5,725/- - Rs. 11,825/- (revised) and the said pay scale was already reflected in the Draft Service Regulations, 1996. The office order dated 25.03.2003 was issued only in order to grant the actual pay scale entitled to the incumbents in the posts of Deputy Administrative Officer and the Deputy Finance & Accounts Officer. They have, thus, submitted that in so far as the claim of the appellant-petitioner to be granted the same scale of pay to him with that of the respondent no. 3 and the respondent no. 4 was concerned, it has no legs to stand. They have further submitted that the appellant petitioner was promoted to the post of Senior Scientific Officer as far back as on 07.04.2005 but he decided to make representations claiming promotion to the post of Senior Scientific Officer from a retrospective date only from 09.12.2014 onwards. It is ex-facie apparent that such claim of the appellant-petitioner was a stale and dead one having been claimed after about a decade from the alleged cause of action. Being a stale and dead claim, the writ petition was rightly dismissed and the present appeal is also liable to be dismissed due to delay and laches. It is further submitted by them that the matter of claim of similar pay scale by the appellant-petitioner with that of the respondent no. 3 and the respondent no. 4 and the matter of claim of promotion by the appellant-petitioner from the post of Scientific Officer to the post of Senior Scientific Officer were completely separate ones having no link whatsoever and thus, the two issues are to be considered separately and cannot be clubbed.8. We have considered the submissions of the learned counsel for the parties and also perused the materials on record including the pleadings submitted by the parties during the course of the writ proceedings before the learned Single Judge.9. The Assam Science Technology and Environment Council is a body under the Department of Science and Technology, Government of Assam. The appellant-petitioner, the respondent no. 3 and the respondent no. 4 came to be appointed in the posts in the ASTEC, as mentioned herein-above, at different points of time indicated. From the submissions of the learned counsel for the parties as well as from the materials on record, it has emerged that though all the three posts are under the ASTEC, the lines of hierarchy for all the three posts are different.10. Before the learned Single Judge, the Director of ASTEC filed an affidavit-inopposition wherein it was stated that during the relevant time the ASTEC followed, as far as possible, the Draft Service Regulations, 1996 till the ASTEC Service Regulations, 2010 came into force and wherever the Draft Service Regulations, 1996 was silent, the ASTEC followed the State Government rules having general application. As per the Draft Service Regulations, 1996, the scale of pay of Deputy Administrative Officer and the Deputy Finance & Accounts Officer was Rs. 2,975/- - Rs. 4,750/- (pre-revised). The 7th General Body Meeting held on 07.07.1997 vide Agenda Item no. 5 approved creation of one post of Deputy Administrative Officer and one post of Deputy Finance & Accounts Officer in lieu of then existing posts of Administrative Officer and Accounts Officer respectively. It was further stated that the scale of pay for the post of Deputy Administrative Officer and the Deputy Finance & Accounts Officer was wrongly mentioned in the open advertisement published in the newspaper. After appointment of the respondent no. 3 and the respondent no. 4 in the said two posts after selection, the said fact was brought to the notice of the authorities by the respondent no. 3 and the respondent no. 4 by making applications with the prayer to correct the pay scale and to grant them the scale of pay of Rs. 2,975/- - Rs. 4,750/- (prerevised) / Rs. 8,100/- - Rs. 13,025/- (revised), instead of Rs. 2,275/- - Rs. 4,450/- (prerevised) / Rs. 5,725/- - Rs. 11,825/- (revised). Finding the grievances of the incumbents i.e. the respondent no. 3 and the respondent no. 4 genuine and since the pay scale of Rs. 2,975/- - Rs. 4,750/- (pre-revised) / Rs. 8,100/- - Rs. 13,025/- (revised) was already mentioned in the Draft Service Regulations, 1996 and the posts were already approved by the 7th General Body Meeting of the ASTEC, the authorities in the ASTEC granted the respondent no. 3 and the respondent no. 4 the said pay scale by effecting the correction. The State Government had also concurred with the said correction. It was, thus, pleaded that by office order dated 25.03.2003 the authorities in the ASTEC carried out correction, though mentioned as re-fixation, in the pay scale in the posts of Deputy Administrative Officer and the Deputy Finance & Accounts Officer, thereby, granting the correct scale of pay to the respondent no. 3 and the respondent no. 4 respectively, who were the incumbents of the said two posts at that point of time.11. On perusal of the Draft Service Regulations, 1996, appended to the paper book, it is noticeable that the pay scale for the post of Deputy Administrative Officer and the Deputy Finance & Accounts Officer was mentioned as Rs. 2,975/- - Rs. 4,750/- (pre-revised). The pay scale for the post of Senior Scientific Officer was also mentioned as Rs. 2,975/- - Rs. 4,750/- (pre-revised). On the other hand, the pay scale for the post of Scientific Officer was mentioned as Rs. 2,275/- - Rs. 4,450/- (pre-revised). It transpires that on revision of the pay scales, the scale of pay of Rs. 2,975/- - Rs. 4,750/- (pre-revised) had become Rs. 8,100/- - Rs. 13,025/- (revised) and the scale of pay of Rs. 2,275/- - Rs. 4,450/- (prerevised) had become Rs. 5,725/- - Rs. 11,825/- (revised). When the respondent no. 3 and the respondent no. 4 came to be appointed in the year 2001, the scale of pay had already been revised and in the orders of appointment issued in respect of the respondent no. 3 and the respondent no. 4 the scale of pay was mentioned as Rs. 5,725/- - Rs. 11,825/- in the revised scale which was earlier Rs. 2,275/- - Rs. 4,450/- in the pre-revised scale. When the appellant-petitioner was appointed on 12.12.1994, the scale of pay was not revised and in his order of appointment, the scale of pay was mentioned as Rs. 2,275/- - Rs. 4,450/- in the pre-revised scale which on being revised at a later date became Rs. 5,725/- - Rs. 11,825/- in the revised scale. The learned Single Judge having considered the above aspects has rightly found no merit in the claim of the appellant-petitioner for setting aside of the re-fixation of pay scale of the respondent no. 3 and the respondent no. 4 granted vide order dated 25.03.2003 in view of the pay scale of the Deputy Administrative Officer and the Deputy Finance & Accounts Officer being clearly shown in the Draft Service Regulations, 1996 as Rs. 2,975/- - Rs. 4,750/- (pre-revised). We also find no good and sufficient reason to depart from the view taken by the learned Single Judge that the advertisement issued for the posts of Deputy Administrative Officer and the Deputy Finance & Accounts Officer showing the pay scale of Rs. 2,275/- - Rs. 4,450/- (pre-revised) was erroneous and therefore, the necessary correction was made accordingly at a subsequent stage by office order dated 25.03.2003. The learned Single Judge has, in our considered opinion, also correctly held that as the initial pay scale attached to the post of Scientific Officer being Rs. 2,275/- - Rs. 4,450/-, (pre-revised) was correctly given to the appellantpetitioner when he was appointed on 12.12.1994, there was no question of re-fixation of his pay scale like that of the respondent no. 3 and the respondent no. 4 as there was no error in his pay scale.12. In respect of the appellant-petitioner’s claim for a direction to grant him the pay scale of Rs. 8,100/- - Rs. 13,025/- (revised) w.e.f. ’12.12.1999’, as prayed in the writ petition, as per the Draft Service Regulations, 1996, the appellant-petitioner in the writ petition had contended that according to the Draft Service Regulations, 1996, the Scientific Officer was entitled to be promoted as Senior Scientific Officer after putting in 5 years of regular service and therefore, the appellant-petitioner was entitled to draw the pay scale as Senior Scientific Officer w.e.f. 14.12.1999. At this stage, it may be stated at the cost of repetition, that this Court has already found, in view of the discussion made above, that there is no connection whatsoever between such claim of the petitioner qua the office order dated 25.03.2003. In support of his contention that as per the Draft Service Regulations, 1996, a Scientific Officer was entitled to be promoted as Senior Scientific Officer after 5 years of regular service the appellant-petitioner has not brought any provision from the Draft Service Regulations, 1996 to the notice of this Court. A copy of the Draft Service Regulations, 1996 is found annexed with the affidavit-in-opposition filed by the respondent no. 4 in the writ petition. As per Regulation 11(1), the post in the higher grades were to be filled up by promotion through a process of selection under a Merit Promotion Scheme and under the Merit Promotion Scheme, a member of the service in a lower grade was to be considered for promotion to the next higher grade on fulfillment of two conditions – (a) the member must have been confirmed in his post in the lowest grade after successful completion of the period of probation, and (b) the member must have rendered service in the lower grade post for the requisite number of years stipulated in Schedule III. The general procedure of promotion was prescribed in Regulation 12 where it envisaged constitution of an assessment committee to consider the promotion of a candidate after assessing his professional knowledge, keenness and aptitude for professional work, ability to take up higher responsibilities, leadership qualities, power of communication and so on including an interview of the candidate. Schedule III had stipulated 7 years of regular service as Scientific Officer to be minimum requisite experience for a candidate to be considered for promotion to the post of Senior Scientific Officer. Thus, the provision contained in the Draft Service Regulations, 1996 regarding requisite experience for promotion to the post of Senior Scientific Officer from Scientific Officer is found contrary to the claim of the appellant-petitioner.13. From the order dated 17.05.2005, annexed to the affidavit-in-opposition of the respondent no. 4, it is found that the appellant-petitioner was promoted/upgraded from the post of Scientific Officer to Senior Scientific Officer in the scale of pay of Rs. 8,100/- - Rs. 13,025/- (revised) w.e.f. 07.04.2005 as per the decision taken in the 9th meeting of the Governing Body held on 07.04.2005. From the office order dated 24.08.2015 it is further found that the appellant-petitioner was allowed to draw the pay and allowances of the next higher scale of pay of the post of Principal Scientific Officer w.e.f. 07.04.2015. By the same order, the respondent no. 3 and the respondent no. 4 were also allowed to draw the pay and allowances of the next higher scale of pay of Administrative Officer and Finance & Accounts Officers respectively w.e.f. 07.04.2015. From the averments made in the writ petition, nothing has emerged to show that the appellant-petitioner after being promoted/upgraded to the post of Senior Scientific Officer w.e.f. 07.04.2005 by order dated 17.05.2005 had raised any objection/grievance in respect of his such promotion w.e.f. 07.04.2005 till he submitted a representation on 09.12.2014.14. As per his own admission made in the writ petition filed in the year 2015, the appellant-petitioner had approached this Court when his representations stated to have been submitted on 09.12.2014 and on 05.05.2015 respectively were not considered by the authorities.15. In this connection, it is apposite to refer to the observations made by the Hon’ble Supreme Court of India in State of Uttaranchal and Another vs. Shiv Charan Singh Bhandari and Others, (2013) 12 SCC 179 wherein the Hon’ble Supreme Court had considered the question of delay in challenging promotion and submission of representations relating to a stale claim or dead grievance. Holding that representations relating to a stale claim or dead grievance do not give rise to a fresh cause of action, the Hon’ble Supreme Court has also observed as under:“19. From the aforesaid authorities it is clear as crystal that even if the court or tribunal directs for consideration of representations relating to a stale claim or dead grievance it does not give rise to a fresh cause of action. The dead cause of action cannot rise like a phoenix. Similarly, a mere submission of representation to the competent authority does not arrest time.23. In State of T.N. v. Seshachalam, (2007) 10 SCC 137, this Court, testing the equality clause on the bedrock of delay and laches pertaining to grant of service benefit, has ruled thus: (SCC p. 145, para 16)“16. … filing of representations alone would not save the period of limitation. Delay or laches is a relevant factor for a court of law to determine the question as to whether the claim made by an applicant deserves consideration. Delay and/or laches on the part of a government servant may deprive him of the benefit which had been given to others. Article 14 of the Constitution of India would not, in a situation of that nature, be attracted as it is well known that law leans in favour of those who are alert and vigilant.”16. In respect of period of limitation to challenge an order of promotion in a writ petition under Article 226 of the Constitution of India, the Hon’ble Supreme Court in P.S. Sadasivaswami vs. State of Tamil Nadu, (1975) 1 SCC 152, has observed as follows:“26. Presently, sitting in a time machine, we may refer to a two-Judge Bench decision in P.S. Sadasivaswamy v. State of T.N., (1975) 1 SCC 152, wherein it has been laid down that: (SCC p. 154, para 2)“2. … A person aggrieved by an order of promoting a junior over his head should approach the Court at least within six months or at the most a year of such promotion. It is not that there is any period of limitation for the courts to exercise their powers under Article 226 nor is it that there can never be a case where the courts cannot interfere in a matter after the passage of a certain length of time. But it would be a sound and wise exercise of discretion for the courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and who stand by and allow things to happen and then approach the Court to put forward stale claims and try to unsettle settled matters.”28. Remaining oblivious to the factum of delay and laches and granting relief is contrary to all settled principles and even would not remotely attract the concept of discretion. We may hasten to add that the same may not be applicable in all circumstances where certain categories of fundamental rights are infringed. But, a stale claim of getting promotional benefits definitely should not have been entertained by the Tribunal and accepted by the High Court.”17. To appreciate the issue of delay and laches, it will also be apposite to refer to the observations made by the Hon’ble Supreme Court of India in C. Jacob Vs. Director of Geology and Mining and Another, (2008) 10 SCC 115 wherein the Hon’ble Supreme Court considered the case of a terminated employee who after decades filed a representation, which was decided. After a decision was rendered on the representation, the terminated employee preferred an original application before the tribunal and the same was entertained by passing an order. In respect of such belated representation, the Hon’ble Supreme Court in C. Jacob (supra) has observed as under:“9. The courts/tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly they assume that a mere direction to consider and dispose of the representation does not involve any ‘decision' on rights and obligations of parties. Little do they realize the consequences of such a direction to ‘consider'. If the representation is considered and accepted, the ex-employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to ‘consider'. If the representation is considered and rejected, the exemployee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief claimed in the representation. The Tribunals/High Courts routinely entertain such applications/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored.15. When a belated representation in regard to a “stale” or “dead” issue/dispute is considered and decided, in compliance with a direction by the court / tribunal to do so, the date of such decision cannot be considered as furnishing a fresh cause of action for reviving the “dead” issue or time-barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a court’s direction. Neither a court’s direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches.”18. It is, thus, settled that anyone who feels aggrieved by non-promotion or promotion which according to him was made belatedly, should approach the Court as early as possible. In Union of India vs. A. Duriaraj, (2010) 14 SCC 389 it has been held that even if no period of limitati

on is prescribed, any belated challenge would be liable to be dismissed on the ground of delay and laches. In the case in hand, the appellant-petitioner had raised his grievance only from 09.12.2014 onwards in respect of his promotion to the post of Senior Scientific Officer given by order dated 17.05.2005 pursuant to the decision dated 07.04.2005 taken in the 9th meeting of the Governing Body of the ASTEC. During the period from 17.05.2005 to 09.12.2014, no grievance was raised by the appellant-petitioner with regard to his promotion/upgradation made vide order dated 17.05.2005. This period from 17.05.2005 to 09.12.2014 which is more than 9 years, cannot be held to be a reasonable one. Mere non-consideration of his representations filed from 09.12.2014 onwards did not give rise to a new cause of action. Similarly, consideration of those representations in an affirmative manner or otherwise would not have given rise to a new cause of action which admittedly arose on 17.05.2005. In view of the same, we are of the considered view that the writ petition filed by the appellant-petitioner in the year 2015 indeed suffered from delay and laches and his claim for promotion from a retrospective date cannot be considered at this distant point of time.19. It is further found that when the appellant-petitioner approached this Court in the year 2015, the Draft Service Regulations, 1996 was no longer in existence. By a notification dated 12.02.2013, the Assam Science Technology and Environment Council’s (ASTEC) Regulations, 2010 came into existence for regulating the recruitment and conditions of service of the persons appointed to the ASTEC service with immediate effect in supersession of an earlier notification dated 12.03.2010. In the memo of appeal, the appellant-petitioner has sought to contend, by referring to the Draft Service Regulations, 1996, that he fulfilled the condition of eligibility for promotion for the post of Senior Scientific Officer by completing 7 years of regular service as Scientific Officer on 11.12.2001 and thus, his assessment should have been completed at a point earlier to 11.12.2001. Neither such plea was taken during the course of proceeding before the learned Single Judge nor there was any averment to that effect in the writ petition. In such view of the matter, no significance can be given to such plea raised for the first time in this writ appeal, preferred against the judgment and order passed in the writ petition, which had already suffered from delay and laches.20. In view of the above fact situation obtaining in the case in hand and for the discussion made above, we do not find any good and sufficient reason to interfere with the judgment and order of the learned Single Judge. This intra-court appeal being devoid of any merit, is liable to be dismissed and accordingly, the same is dismissed. There shall, however, be no order as to cost.