WP(C) 4170/2009 BEFORE THE HON’BLE MR JUSTICE IA ANSARI JUDGEMENT AND ORDER [ O R A L ] As had been sought for, and agreed to, by the learned counsel for the pa rties, this writ petition is taken up for the purpose of final disposal along wi th the application, which the respondent No. 3 has filed seeking to get vacated the interim direction passed, in this writ petition, on 23-09-2009, the applicat ion having given rise to Misc. Case No. 663/2010. 2. The petitioner No. 1, a society, which is run under the name and style o f Coaches Association , stands registered under the Societies Registration Act, 1860, the petitioner Nos. 2 and 3, namely, Sri Baneebrata Das and Shri Ajit Kr. Das, being President and Secretary respectively of the petitioner No. 1, which is hereinafter referred to as ’petitioner association’. 3. The grievance of the petitioner association is, in substance, thus: In o rder to streamline the training and standard of performance of the coaches in th e country and bringing the same at par with international standards, the Governm ent of India, Department of Sports and Youth Welfare, had set up Netaji Subhash Chandra Bose National Institute of Sports (in short, NIS ), for all disciplines of sports, which are recognized under the Olympics, the Commonwealth, the Asian Games and other international sports events and offers diploma, in Coaching, in three distinct categories, namely, categories A, B and C. A post of physical in structor cannot be equated to the post of coach inasmuch as even a person, holdi ng the degree or diploma in physical education, is required to undergo the cours e, as prescribed, for being trained as a coach at NIS, Patiala. Even the Governm ent of Assam has been sending persons, with ability in sports, to pursue the cou rse of coaching offered by the NIS. Gradually, as the requirement of trained coa ches increased, the State respondents started appointing persons, having requisi te qualifications and proficiency obtained from the NIS, as coach, under its Dep artment of Sports and Youth Welfare. By letter, dated 02-07-1987, a request was made by the Deputy Secretary to the Government of Assam, Department of Sports an d Youth Welfare, to the Assam Public Service Commission (in short, ’APSC’), for appointment to three Gazetted posts under the Directorate of Sports and Youth We lfare. In the said requisition, one post of Deputy Director of Sports (Coaching) was advertised for selection and appointment, the qualification required being, inter alia, 10 months’ diploma in coaching from NIS. Pursuant to the requisitio n, so received by the APSC, an advertisement was published, on 13-03-1992, by th e APSC, inviting applications. However, the said advertisement was not perused a nd was abandoned by a letter, dated 21-04-1992, issued, in this regard, by the G overnment. Thereafter, on 04-07-2007, the APSC published another advertisement t o fill up, amongst others, six posts of District Sports Officer, the educational qualifications being, apart from a degree in arts, science or commerce from rec ognized university, three years degree in physical education or diploma in NIS. By, however, a subsequent corrigendum published on 24-07-2007, the requirement o f having diploma in NIS came to be deleted. The Government, thereafter, publishe d the Assam Sports and Youth Welfare (Recruitment and Promotion) Services Orders , 2001, which provide for filling up of various posts in the Department of Sport s and Youth Welfare. The said Service Order cover the post of Deputy Director of Sports (Coaching). The prescribed qualification, under the said Service Order, does not require any diploma in NIS from a recognized institute as an essential qualification for appointment to any of the posts to which a coach can be promot ed. In fact, the post of a physical instructor is equivalent, under the said Ser vice Orders, to the post of Coach. Thus, without even having been trained to be a coach, a person may be promoted, under the said Service Order, 2001, to the po st of the Deputy Director of Sports (Coaching). Thus, the said Service Orders se riously undermine the status, position and requirement of the coaches and ignore s the avowed policy with which the NIS has been established and even the Governm ent of Assam sends persons to pursue the course of coaching. 4. While issuing notice of motion, an order was made, in this writ petition , on 23-09-2009, as already pointed out above, whereby an interim direction was given to the State respondents not to fill up the lone vacant post of Deputy Dir ector of Sports (Coaching). By making a miscellaneous application, which has giv en rise to Misc. Case No. 663/2010, the respondent No. 3 has sought to get the s aid interim direction vacated. That is how, this writ petition has come to be fi xed for final disposal. 5. I have heard Mr. AK Goswami, learned Senior counsel, for the petitioner, and Mr. R Bora, learned Government Advocate, appearing on behalf of the State r espondents. I have also heard Mr. UK Nair, learned counsel, for the private resp ondent. 6. While considering the present writ petition, it needs to be noted that t he petitioners have correctly pointed out that in order to streamlining the trai ning and standard of performance of the coaches in the country and bringing the same at par with international standards, the Government of India, Department of Sports and Youth Welfare, has set up NIS, which offers diploma in Coaching to t hree different categories of persons divided into categories A, B and C and such diploma can be obtained even by a bachelor of physical education or by a post g raduate diploma holders in physical education. By letter, dated 02-07-1987, as a lready mentioned above, a requisition was, indeed, given by the Department of Sp orts and Youth Welfare, Government of Assam, to the APSC, for filling up of thre e posts, which included the post of Deputy Director of Sports (Coaching), but th e said request was, eventually, withdrawn and the process of selection, which wa s commenced by the APSC by issuing advertisement, dated 13-03-1992, was abandone d. The reasons, for such a decision, are, however, indicated in the letter, date d 21-04-1992, issued, in this regard, by the Government of Assam, Department of Sports and Youth Welfare. The reasons assigned, in substance, are thus: During t he year 1987, the Government had created one post of Deputy Director of Sports ( Coaching), one post of Assistant Director of Sports (Body Building) and one post of Assistant Director of Sports (Rural Sectoral Games). The post of Deputy Dire ctor of Sports (Coaching) was being held by one Nitya Nanda Sarma, the post of A ssistant Director of Sports (Body Building) was held by one Shri Hara Kanta Borg ohain and the post of Assistant Director of Sports (Rural Secotral Games) was he ld by Miss Meena Bora. All the said three persons, however, held their respectiv e posts, on ad-hoc basis. Be that as it may, Sri HK Borgohain and Miss Meena Bor a left the job in the month of March, 1989. On retirement of these officers, Gov ernment had been moved by the Directorate of Sports and Youth Welfare by letter, dated 27-05-1989, for filling up the posts of Assistant Director of Sports by p romotion from the posts of District Sports Officer. The Government accordingly c onstituted a Selection Committee by notification, dated 12-05-1989. The Governme nt was, once again, requested, by letter, dated 03-08-1991, to fill up the post of Assistant Director of Sports by promotion from the posts of District Sports O fficer and the service records of the eligible officers were also submitted to t he Government accordingly. Similarly, the post of Deputy Director of Sports (Coa ching) was held by Shri Nitya Nanda Sarma, in the year 1987, as per Government n otification, dated 20-02-1987, which had created the said post on ad-hoc basis f or not beyond one year. The appointment, so made, was extended for a period of o ne year; but beyond this date, the appointment was not extended. As a result the reof, though Shri Nitya Nanda Sarma had remained in service, he had not receive d his pay since April, 1989. 7. With the object of regularizing the post of Deputy Director of Sports (C oaching), which had been held by Shri Nitya Nanda Sarma, on ad-hoc basis, as des cribed above, the APSC was requested to advertise the post. However, the APSC ad vertised the post after long 5 years. In the meanwhile, two of the incumbents, n amely, Shri Hara Kanta Borgohain and Miss Meena Bora, as mentioned above, left t he jobs as they got appointed under the Sports Authority of India and the only i ncumbent, who continued was Shri Nitya Nanda Sarma, Deputy Director of Sports (C oaching), whose service remained without being regularized. 8. It is, now, necessary to note that the Assam Sports and Youth Welfare (R ecruitment and Promotion) Service Orders, 2001, have come to be notified, in the State Government’s Gazette, on 13-11-2002. The said Service Orders have been br ought into force pending finalization of the service rules, which are required t o be framed by the Government under Article 309 of the Constitution of India. Un der the said Service Orders, the post of Deputy Director of Sports (Coaching) is a post, which can be filled up from the post of Assistant Director of Sports an d Youth Welfare. However, the appointment to the post of Assistant Director of S ports, Youth Welfare, does not require diploma from NIS. 9. It is worth pointing out that the said Service Orders having not been ch allenged, would hold the field so long the appropriate service rules are not mad e in this regard and/or until the provisions of the said Service Orders are not modified by the appropriate authority. The petitioners have not challenged, in t his writ petition, the legality and validity of the said Service Orders. In such circumstances, respondent No. 3, who is, otherwise, eligible, in terms of the s aid Service Orders, for promotion to the post of Deputy Director of Sports (Coac hing), cannot be restrained by this Court from being considered for promotion in asmuch as the right to be considered for promotion is, now, recognized as a fund amental right if a person is, otherwise, eligible and falls within the zone of c onsideration (See Delhi Jal Board -vs- Mahinder Singh, reported in (2000) 7 SCC 210). This Court, therefore, cannot, in exercise of its powers, under Article 22 6 of the Constitution of India, restrain the State from considering the case of respondent No. 3 for promotion, when the Service Orders, governing the service c onditions of the petitioners and also of the respondent No. 3, hold the field, w hereunder the petitioner is eligible and within the zone of consideration. This apart, the petitioners have merely sought for necessary directions to be issued by this Court restraining the Government from making promotion to various posts including the posts of Deputy Director of Sports (Coaching) without considering the grievances of the petitioners that their specialized knowledge, as coaches, are not being recognized, appreciated, taken care of, encouraged and promoted by making relevant provisions in the said Service Orders or in any other legal man ner. 10. While invoking its powers under Article 226 of the Constitution of India , this Court cannot restrain the State Government, permanently, from making any promotion, under the said Service Orders, without considering the case of the pe titioners, when the petitioners have not even challenged the conditions of their services and/or conditions of recruitment and/or promotion as mentioned in the said Service Orders, 2001. Situated thus, it becomes clear that neither this Cou rt can restrain the State respondents from considering the case of the responden t No. 3 for promotion to the post of Deputy Director of Sports (Coaching) nor ca n this Court command the State Government not to make any promotion, in terms of the said Service Orders, without considering the grievances of the petitioners. 11. Because of what have been discussed and pointed out above and without ex pressing any opinion as to the correctness or otherwise of the grievances expres sed by the petitioners that the coaches are not being given appropriate attentio n by the State Government, while framing conditions for recruitment and promotio n of persons, who look after, manage and administer sports, as coaches, this wri t petition is dismissed and the State respondents are given the liberty to proce ed to fill up the lone vacant post of Deputy Director of Sports (Coaching) by ad hering to the provisions of said Service Orders, 2001 and consider the case of t he respondent No. 3 accordingly. The selection of the respondent No. 3, if alrea dy made as the Deputy Director of Sports (Coaching), may be finalized and given effect to by the State respondents. 12. Notwithstanding the fact that this writ petition has been dismissed, the petitioners shall have the liberty to approach this Court with appropriate appl ication(s), as may be permissible in law, for remedy of their legally sustainabl e grievances, if any. 13. No order as to costs.