WP(C) 5492/2005 BEFORE THE HON’BLE MR JUSTICE B.K. SHARMA. Heard Mr. U.K. Nair, learned counsel for the petitioner in WP(C) No.5492 /2005. Also heard Ms J. Huda, learned counsel appearing for the petitioner in WP (C) No.4366/2009. While in WP(C) No.5492/2005, the petitioner has challenged the Annexure- H order dated 1.8.2005, by which she was reverted to the original post of W/C Kh alashi from that of Lower Division Assistant (L.D.A), in WP(C) No.4366/2009, the petitioner has prayed for a direction to the respondents to promote her to the post of L.D.A. on the ground of being senior to the other writ petitioner. In fa ct, she had earlier approached this Court by filing WP(C) No.4137/2005, which wa s disposed of by order dated 27.1.2009 directing the respondents to consider her case for promotion. Pursuant to the said order, the petitioner submitted repres entation before the authority and thereafter, following the inter-departmental c orrespondences, the Executive Engineer, P.W.D (Roads) passed the impugned order dated 13.4.2009 (Annexure-H to the writ petition). As per the impugned order, th e petitioner being a Work Charged Khalashi, is not entitled to get promotion to the post of L.D.A. So far as the petitioner in WP(C) No.5492/2005 is concerned, her case is that she was promoted to the post of L.D.A. by Annexure-D order dated 30.9.2004 purely on temporary basis in the exigencies of service. According to her, such promotion ought not to have been cancelled treating the same to be a regular pro motion inasmuch as the order of promotion itself shows that the same was purely on temporary basis. Before passing the impugned order dated 1.8.2005, the petitioner was aff orded opportunity of being heard and the notice was issued to her vide Annexure- F show cause dated 29.7.2005. In the notice, it was stated that she being Work C harged Khalashi, could not have been promoted to the post of L.D.A. and that th ere is no rule for such promotion. Pursuant to the said notice, the petitioner by her representations both dated 1.8.2005 intimated the authority about her ill ness. Thereafter, the authority passed the impugned Annexure-H order dated 1.8.2 005 reverting her to the post of Work Charged Khalashi, from which post she was promoted to the post of L.D.A. The respondents have filed their counter affidavit in WP(C) No.4366/2009 , in which their stand is that a Work Charged Khalashi cannot be promoted to the post of L.D.A, as the same is not permissible under the rules. On the other han d, the stand of the petitioner is that in the exigencies of service, the tempora ry appointment to the post of L.D.A. from amongst the Work Charged Khalashi can be made. Even while doing so, the authority cannot ignore the seniority positio n of the Work Charged Khalashi. In temporary appointment to the promotional post of LDA, if permissible under the rules from amongst the Work Charged Khalashi, the authority will have to consider the case of the incumbents as per the senior ity position and it cannot grant the benefit of promotion on pick and choose bas is. In WP(C) No.4366/2009, the petitioner has annexed the copy of the senior ity list of the Work Charged Khalashi to show that as against the position of th e petitioner in WP(C) No.5492/2005 at Sl. No.9, her position is at Sl. No.5. The re are other four Work Charge Khalashis senior to both the petitioners. If the authority feels that the post of L.D.A. is to be manned by Work C harged Khalashi, they will have to make arrangement taking into account the seni ority position of Work Charged Khalashis. In view of the above, both the writ petitions are disposed of providing that in the event of any decision to promote the Work Charge Khalashi to the pos t of L.D.A., the authority will do so strictly adhering to the seniority positio n indicated in the seniority list. They will also consider as to whether the Wor k Charged Khalashi are entitled to get promotion to the post of L.D.A. The interim order passed in 5492/2005 shall stands vacated. The authorit y may pass appropriate order taking into account the cases of all the Work Charg e Khalashis consistently with the observations made above. At this stage, Mr. Nair, learned counsel appearing for the petitioner in WP(C) No.5492/2005 submits that since the impugned order speaks of recovery of the salary from the petitioner but having regard to the fact that the petitioner has discharged the duties and functions of the post of L.D.A., such recovery is not permissible. It is hereby clarified that the respondents will not be entitl ed to make any recovery from the salary of the petitioner in respect of service rendered by her in the post of L.D.A. The writ petitions are disposed of.