MC 472/2011 BEFORE HON’BLE MR JUSTICE B.K. SHARMA Heard Mr. B. J. Ghosh, learned counsel for the applicant as well as Mr. S.K. Ghosh, learned counsel appearing for the writ petitioners. By means of this application, the applicant has prayed for vacation of t he order dated 28.6.2010 passed in the writ petition providing that no appointme nt shall be made in the ranks of Platoon Commander, Lence Naik, Naik, Havilder a nd Subeder from outside the 1st and 2nd AISF Battalion without the leave of the Court. The petitioners are in the rank of constables. However, they claim that t hey are required to be conferred with the status and rank of the aforesaid categ ories. In paragraph 4 of the application it has been stated thus - That the Respondent No. 4/applicant respectfully states that they have filed counter affidavit on 20.8.2010, wherein it was stated, inter -alia that al l the petitioners irrespective of their ranks are in the substantive rank of Co nstable in the Assam Industrial Security Force Battalion in which they were ab sorbed. In the erstwhile Assam Tea Plantation Security Forcer(ATPSF) they were e ngaged on purely contractual basis against daily wages at fixed rate and was und er the control and supervision and at the disposal of Director General of Civil Defence and Commandant General of Home Guards, Assam and they were never a part of regular Assam Police Force. The various ranks they were holding such as Plato on Commander, Lance Naik, Naik, Havilder were for convenience of local managemen t at the instance of the local Commander without any concurrence of Assam Home G uards Non-Gazetted Service Rules and without going though any promotional proces s/training as required under the Assam Home Guards Non-Gazetted Service Rules. T hese personnel were not covered under any gradation list of any cadre of Assam Home Guards Non- Gazetted Employees. In compliance with the judgment passed by the Hon’ble Court in C/.R. No. 1584/97, the Govt. constituted two new battalions namely - Assam Industrial Se curity Force 1st and 2nd for absorption of personnel of erstwhile ’Assam Tea Pla ntation Security Force. On completion of selection process, the selected personn el were appointed as Constable as per scheme which provides for appointment of s elected personnel as Constable under Assam Home Guards (Non-Gazetted) Service Ru les, 1991. Further, the said scheme laid down that the supervisory subordinate o fficers and other members(Havilder, Naik, Lance Naik) shall be filled up by depu tation from Home Guards. Before the acceptance of appointments petitioners furni shed an undertaking to abide by the scheme. A copy of the undertaking as model undertaking is annexed herewith as An nexure - B . The rank as well as pay admissible to the petitioners brought over Assam Tea Plantation Security Force, other than ex-servicemen was that of Constable i n the basic pay of Rs. 2650/-. The ranks shown against the opposite/parties writ petitioners was honorary as also indicated in the order dated 20.3.2009. As per the number of the personnel to be brought under the newly raised force. AISF Ba ttalion was higher than the sanctioned posts of 1744 Constable, so all personnel who were to be appointed against the substantive post of Constable as per the s cheme, could not be absorbed against the substantive posts of Constables. Theref ore, the opposite parties/writ petitioners were temporarily accommodated as Sube dar, Platoon Commander, Havilder, Naik, Lance Naik by keeping the maintenance of these posts of Platoon Commander, Lance Naik, Naik, Havilder, Subedar in abeyan ce and as such ranks shown against their names is honorary. From the above what is seen that before acceptance of appointments, th e petitioners had furnished an undertaking to abide by the scheme. In the writ petition the prayer of the petitioners is to fix their salar y in the ranks held by them. The whole controversy is as to in which ranks the p etitioner should fit in. According to the respondents/applicants, the petitioner s are in the substantive rank of constable in the AISF Battalion in which they w ere absorbed. As regards their earlier ranks such as Platoon Commander, Lence-Na ik, Naik, Havilder and Subeder, same were for convenience of local management at the instance of the local commander without any concurrence of Assam Home Guard s Non-Gazetted Service Rules and without going through any promotional process/t raining as required under the said Rules. Without expressing any opinion on the merit of the case of the rival par ties, I am prima facie satisfied that the applicant is entitled to get modificat ion of the interim order. It is hereby provided that the applicant i.e. the resp ondent No. 4 would be at liberty to make appointment to the rank of Platoon Comm ander, Lence Naik, Naik, Havilder and Subeder from outside the first and second AISF Battalion, which however, would be subject to the outcome of the writ petit ion and to the claim of the petitioners as reflected in the writ petition. While making the aforesaid appointments, same shall not be at the cost of services of the petitioners. Misc. Case is disposed of.