MC 425/2011 BEFORE THE HON’BLE MR. JUSTICE AMITAVA ROY The instant application is one to vacate the interim restraint imposed by this C ourt vide its order dated 23.09.2009, passed in MC No. 2575/2009 in WP(C) No. 44 18/2008. I have heard Mr. KN Choudhury, learned Addl. Advocate General, Assam for the app licant and Mr. YS Mannan, learned counsel for the writ petitioner/opposite party in WP(C) No. 4418/2008. Also heard Ms. R Choudhury, learned counsel for the wri t petitioner in WP(C) No. 288/2009 and WP(C) No. 4201/2009 on this limited aspec t of the lis. The facts encompassing the batch of writ petitions present a chequered history. Having regard to the issue presently under consideration, a thumbnail portrayal thereof would suffice. An advertisement was published on 19.07.2001 by the Transport Department of the State initiating a process under the Assam Transport Service Rules, 2003 (hereaf ter for short referred to as the Rules) to fill up 32 posts each of Assistant En forcement Inspector and Enforcement Inspector with it. The process could not be taken to its logical end due to judicial intervention at the instance of the con tending candidates, which culminated in the decision dated 04.08.2003 rendered b y the Hon’ble Apex Court in SLP No. 3553/2003, directing the Department to re-ad vertise the 64 posts, which was accordingly, done one 30.07.2005. Though, a sele ct list was prepared on 14.12.2005 and was on the verge of being published, the selection process was again impugned in a series of writ petitions before this C ourt. The learned Single Judge sustained the challenge on 21.06.2006. Being aggr ieved, the interveners as well as some of the selectees took the challenge befor e a Division Bench of this Court in WA No. 57/2007, WA No.249/2007 and WA No. 27 8/2006. The appeals were allowed on 20.12.2007 and finally the select list was p ublished on 07.04.2008. Though, an impugnment therefrom was taken to the Apex Co urt, it was dismissed vide order dated 21.10.2008 rendered in SLP(C) No. 9672/20 08, whereafter, appointment to all the 64 posts were made on the basis of the se lect list dated 07.04.2008. The writ petitions, in hand, witness a fresh assailment of the above process and the appointments made thereunder, principally on two grounds, namely, (i) as, o n the date of the publication of the advertisement on 30.07.2005, there were exi sting vacancies to the tune of 41 and 34 in the posts of Assistant Enforcement I nspector and Enforcement Checker, the said authorities were bound under Rule 6 ( 1) (a) of the Rules to notify the same in full and (ii) they not having done so, not only the writ petitioners have been denied appointment thereto having regar d to their placement in the select list dated 07.04.2008, the entire exercise is vitiated by the contravention of the Rules. While, this challenge was pending, the Transport Department on 12.09.2009 initia ted a fresh process vide an advertisement of the even date soliciting candidatur e to fill up 11 and 16 posts of Assistant Enforcement Inspector and Enforcement Checker. This process has been impugned in WP(C) No. 4201/2009 also on the groun d that pending the adjudication of the issues in the already pending writ petiti ons, though, relatable to the earlier process, a fresh exercise under the Rules could not have been commenced. An interim application having been filed by the writ petitioners in WP(C) No. 44 18/2008 (registered as MC No.2575/2005), contending that the posts mentioned in the advertisement dated 12.09.2009 also constitute the subject matter of the cha llenge in WP(C) No.4418/2008, this Court by order dated 23.09.2009 is imposed th e interim restraint, directing the said authorities not to finalize the process initiated by the 12.09.2009 without its leave. It is, this order, which is sough t to be vacated and modified by the applicant-State. Mr. Choudhury, has urged, having regard to the above backdrop of facts that as t he vacancies/posts figuring in the advertisement dated 12.09.2009 are beyond the purview of those notified on 30.07.2005, the interim restraint ought to be vaca ted in public interest. To reinforce his plea that the posts advertised on 12.09 .2009 had occurred after 2005 and precisely during 2007 and 2008, the learned Ad dl. Advocate General, Assam has drawn the attention of this Court to the communi cation No. TMV-24/2000/Pt/133, dated 07.03.2008 of the Under Secretary, Governme nt of Assam, Transport Department as well as the note dated 28.02.2008 to this e ffect. In addition, Mr. Choudhury, has urged that the plea of the writ petitione rs of the possibility of their appointment against the posts, which according to them, lay vacant in the year 2005, but not advertised, is too far fetched as we ll as speculative and cannot in any view form the foundation of the interim rest raint, as granted by this Court. Mr. Mannan, while reiterating, on the basis of Rule 6(1) (a), that the omission on the part of the State respondents in advertising all existent vacant posts on 30.07.2005 has rendered the consequential process illegal and non est in law, h as urged, as well, that the same constitutes denial of appointments to public po st to the writ petitioners in transgression of their fundamental right. He conte nded that having regard to the position of his (writ petitioner in WP(C) No.4418 /2008), in the select list dated 07.04.2008, had all the posts been advertised o n 30.07.2005, he would have been comfortably appointed as an OBC candidate. Ms. Choudhury, while endorsing the above plea, has additionally contended that t he action of the State authorities in advertising fresh posts on 12.09.2009, pen ding the adjudication of the challenge vis-a-vis the earlier process, is palpabl y illegal and, thus the interim restraint, in the above factual background, ough t not to be interfered with. The facts necessary to be noticed to decide the issue and the submissions relata ble thereto have been duly taken note of. It is submitted at the Bar that the pe titioners have not participated in the process initiated by the advertisement da ted 12.09.2009. Rule 6 (1) (a) of the Rules, which deals with direct recruitment to the service thereunder mandates that the same has to be on the basis of reco mmendations made by the Assam Public Service Commission (hereafter for short ref erred to as the Commission or Board) to be constituted thereunder. In terms ther eof, before the end of each year the Appointing Authority shall make an assessme nt regarding the likely number of vacancies to be filled by direct recruitment d uring the next year and shall intimate the same to the Commission/Board together with details about reservation of the candidates belonging to the reserved cate gories as mentioned therein. Rule 6 (1) (d) further refers that the number of ca ndidates in the list to be prepared by the Commission/Board may be approximately double the number of vacancies. A plain reading of Rule 6 (1) (a) ipso facto, does not, in the tentative opinion of this Court, suggest that the Appointing Authority is inflexibly bound thereu nder to fill up all vacancies either existing or anticipated during the next yea r. The Appointing Authority for reasons to be recorded may desist from filling u p all the posts depending on the exigencies of the service felt at the relevant point of time. Noticeably, it is not the case of the parties that the criteria/n orms of appointment by direct recruitment prescribed by the Rules and in vogue i n the year 2005, have undergone change to have a bearing on the prospect of the candidates participating in any selection process thereafter. On being queried by this Court, the learned counsel for the petitioner at the pr esent have not been able to cite any provision of the Rules making it incumbent on the part of the Appointing Authority to fill up all posts by direct recruitme nt, as may be available at that point of time as contemplated in Rule 6 (1) (a). As the writ petitions are pending for final adjudication, it is considered appr opriate not to dilate further on this issue. Prima facie, this plea raised on be half of the writ petitioner does not appeal this Court as a ground to continue w ith the interim restraint vis-a-vis the process initiated by the advertisement d ated 12.09.2009. Though, it had been contended as well, that the select list dated 07.04.2008 is also transgressive of the Rules being not in compliance with the Rule 6 (1) (d), in the opinion of this Court, the same also does not clinch the issue in favour of the writ petitioners for the time being in view of section 7 of the Assam Fi scal Responsibility and Budgetary Management Act, 2005. This again is a tentativ e view of this Court recorded for the determination on the issue in hand. The plea of pendency of the writ petitions perceived to be of prohibitive bearin g on the fresh process initiated by the advertisement dated 12.09.2009 is also u nconvincing. The submissions made on behalf of the applicant-State that the post s involved are of strategic importance ought to be filled up to cater to public interest, also cannot be lightly brushed aside. In the above view of the matter, the interim order dated 23.09.2009 passed in MC No. 2575/2009 in WP(C) No. 4418/2008 is hereby vacated. It is, however, made cl ear that appointments made on the basis of the fresh selection process, would, h owever, be subject to the final order(s) in the writ petitions. The miscellaneous application stands allowed in the above terms. No costs.