WP(C) 3554/2010 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA Heard Mr. P.K.R. Choudhury, learned counsel for the petitioners in WP(C) 3554/2010 and WP(C) 1200/2010. Also heard Mr. M. Dutta, learned counsel appeari ng for the petitioners in WP(C) 716/2010. I have also heard Mr. B.C. Das, learne d senior counsel assisted by Mr. P. Sarma, learned counsel appearing for the pet itioners in WP(C) 2772/2010. Mr. B. Sinha, learned counsel has entered appearanc e on behalf of respondent No.3 in WP(C) 3554/2010 and he has been heard. Ms. P. Chakraborty, learned Standing Counsel, Social Welfare Department, appearing in a ll the writ petitions has argued referring to the stand of the respondents in th eir counter affidavit as well as in MC 2828/2010 by which a prayer has been made for vacating the interim order dated 3.2.2010 passed in WP(C) 716/2010. The issue that has been raised in all the writ petitions, more or less b eing one and the same, all the writ petitions have been heard analogously and ar e being disposed of by this common order. The basic grievance raised in all the writ petitions is the advertisemen t dated 16.5.2010 inviting applications for 9(nine) posts of CDPO. As per the sa id advertisement, the posts will be filled up on contractual basis, validity of which will be for one year. According to the petitioners who are serving in the cadre of Supervisors , by means of such advertisement and the follow up action for appointment to the post of CDPO by way of direct recruitment, their chances of promotion to the sa id cadre i.e. CDPO are being reduced. According to the petitioners, in the garb of contractual appointment, what the official respondents have contemplated is t o make appointment on pick and choose basis and thereafter to regularise their s ervices by depriving the petitioners from their promotional quota, although not in clear terms but somewhat in an indirect manner, what the petitioners have con tended is that if the appointments are made pursuant to the impugned advertiseme nt, their quota of promotion will be affected and in the process, the petitioner s will be deprived of their promotion which according to them is long over due. It will be pertinent to mention here that WP(C) 2772/2010 has been filed by the petitioners who are persons from the Statistical Wing of the Social Welf are Department. Their grievance is non-implementation of the earlier orders pass ed by this Court by which it was provided that the departmental candidates worki ng in the said wing are also entitled to their share of promotion to the post of CDPO. In this connection, they have referred to the order dated 3.3.2004 passed in WP(C) 5346/2002, in which the Court made the following observations :- Following the ration of the law laid down by the Apex Court in the case of Ragh unath Prasad Singh (supra) and on an over all consideration of the totality of t he facts as revealed by the materials on record, I am of the considered view tha t this writ petition should be closed with a direction to the respondents to ens ure that reasonable avenues of promotion is provided to the employees of the Sta tistical Wing of the Social Welfare Department. What should be extent of the pro motional avenues to be provided as well as the basis and criteria therefore and the mode and manner in which such promotion would be required to be made is lef t to the discretion of the authority. It is further directed that the Service Ru les or a Service Order as may be found to the expedient shall be framed and form ulated by the Social Welfare Deptt. covering all categories of employees of the Statistical Wing and the same shall be brought into force within a period of 6 m onths from today. The Secretary to the Govt. of Assam, Social Welfare Department will be personally responsible for implementation of this Court’s above directi ons. Registry will furnish a copy of this order to the Secretary to the Govt. of Assa m, Social Welfare Department. This Court has noticed that by the interim order dated 27.8.2002 this Co urt had directed that 20% of the posts in the cadre of CDPO should not be filled up. This court obviously had in mind the interest of the employees represented in the present writ application at the time when the aforesaid interim direction was issued. The aforesaid interim direction will, therefore, continue until the above mentioned direction of this Court is duly complied with by the respondent State. The writ petition shall stand closed in terms of the above directions. In MC No. 2828/2010, by which the official respondents have prayed for v acation of the interim order dated 3.2.2010 passed in WP(C) No. 716/2010, they h ave referred to the Assam Social Welfare (Recruitment and Promotion) Service Ord er, 1994, a copy of which has been produced by Ms. P. Chakraborty, learned Stand ing Counsel, Social Welfare Department. The said Service Order was published in the official gazette on 10.1.1995. As per the said Service Order, 60% of the pos ts in the cadre of CDPO are required to be filled up by way of direct recruitmen t while remaining 40% of posts are to be filled up by promotion from the feeder cadre. The stand of the respondents has been indicated in paragraph 7, 8, 10 and 11 which are quoted below :- 7. That the applicants state that the advertisement had nothing to do with the promotion of the petitioners and had no remote possibility of affecting thei r interest in the matters of promotion inasmuch as the procedure followed by the Social Welfare Department with regard to promotion of the Supervisors to the po st of Chief Development Project Officer is regulated by the Assam Social Welfare (Recruitment and Promotion) Service Order, 1994. The order contemplates filling up of 60% of the posts by way of direct recruitment while remaining 40% of the posts shall be filled up by way of promotion from the feeder cadre. There are 83 Nos of promotees in position in the cadre of Child Development Project Officer . There are total 227 nos. of ICDS Projects (including the newly formed ICDS pro jects) under the Social Welfare Department. As per the standing Service Order as referred to herein above 60% direct recruitment means a total 136 no. of posts and 40% of the posts are to be filled up by way of promotion comes to 91 nos. of posts. That the Department is obliged to fill up 22 nos. of posts as reserved f or filling up from the cadre of Statistical Assistant as per the direction of th is Hon’ble Court as passed on 3.3.2004 in WP(C) No. 5346 of 2002. The department has already initiated the steps in this regard to comply with the direction of this Hon’ble Court. Therefore, the scenario that emerge from what has been state d above is that total number of posts already filled up and to be filled up as C DPO through promotion is 105 which exceeds the 40% that can be promoted under th e Service Order of 1994 regarding recruitment and promotion. That at present the re are 42 nos. of vacant posts of CDPO. That the impugned advertisement has been issued seeking filling up of 9 vacant posts of CDPO may likely to be increased on contractual basis is to meet the exigency. The 9 posts should be filled by th e selection initiated on 9.1.2010 i.e. by way of the impugned advertisement, the refore, has nothing to do with the promotion of the present writ petitioners/OPs . 8. That the applicants state that the promotion of the petitioners will be considered in terms of the Service Order, 1994 as followed by the department and this has nothing to do with the direct recruitment of CDPOs. Therefore, in any view of the matter the recruitment of the CDPO on contractual basis will not aff ect the interest of the writ petitioners in the writ petition. Therefore, stay o f the impugned advertisement was uncalled for under the facts and circumstances of the case in hand. 10. The writ petitioners have filed the instant writ petition on a mistaken view of the fact and law in the instant case in hand inasmuch as the advertised vacancies are not meant for all existing vacancies. The vacancies which are to b e filled up by way of promotion would be filled up by the applicants from the fe eder cadre. The advertisement had to be issued by the Department to operationali se the projects which are for a temporary period and which required contractual engagement. The writ petitioners have confused the entire matter and have come up with the instant writ petition referring to the earlier judgements passed by this Hon’ble Court directing to consider the promotion of the writ petitioners. The applicants do not in any manner dispute or reject the claim of the writ peti tioners to promotion to the post of Child Development Project Officers. The appl icant department is under an obligation to consider the promotion of the writ pe titioners as and when the vacancy under the 40% category is available as per the ir seniority. 11. That the applicants beg to state that it would be pertinent to mention h ere that the 9 posts may likely be increased advertised if required to be regula rised subsequently the regularisation has to be by way of regular selection thro ugh Assam Public Service Commission and the contractual service-holders will hav e no claim for continuation in service. For any such continuation the incumbent will have to be qualified and recommended by the Assam Public Service Commission in order of merit. In that view of the matter the writ petition being misconcei ved is liable to be dismissed and the interim order passed on the basis of the m isconception of law in this regard is required to be modified/vacated which othe rwise is creating hurdle in implementation of the Projects for which the appoint ments were required by the department. From the above, what is seen is that it is the definite stand of the res pondents that no steps have been taken to intrude upon the quota ear-marked for promotions to the cadre of CDPO. Their definite stand is that the appointments w ill be made purely on contractual basis, validity of which will remain for one y ear and such appointment shall in no way affect the chances of promotion of the petitioners. As regards the quota ear-marked for the employees working in the St atistical Wing of the Social Welfare Department, same has been done as per the d irection of the Court, referred to above. It being not a clear cut case in which it has been shown that by taking recourse to the impugned advertisement, there is an endeavour on the part of the official respondents to intrude upon the quota ear-marked for promotion to the posts of CDPO, merely on the basis of the apprehension expressed by the petition ers, the writ court cannot make a roving enquiry, more so, when the definite sta nd of the respondents is that no attempt has been made to deprive the petitioner s from their due consideration for promotion to the post of CDPOs. Merely becaus e the impugned advertisement has been issued for recruitment on contractual basi s, this court cannot return the findings that such a course of action has been a dopted to deprive the petitioners from appointment to the post of CDPO. For all the aforesaid reasons, I am inclined to vacate the interim orde r dated 3.2.2010 passed in WP(C) 716/2010 permitting the official respondents to go ahead with the impugned advertisement. However, it is made clear that while doing so, official respondents shall bear in mind the promotional prospects of t he petitioners. In other words the impugned advertisement and the selection and appointment pursuant thereto shall in no way effect the quota ear-marked for pro motion to the post of CDPO. The respondents shall also bear in mind the right of consideration for promotion of the employees working in the Statistical Wing of the Social Welfare Department about which mention has been made above. With the above observations, all the writ petitions stand disposed of. C onsequently the interim order passed on 19.2.2010 in WP(C) 1200/2010 also stands vacated.