JUDGMENT : HRISHIKESH ROY, J. Heard Mr. H.R.A Choudhury, the learned Senior Counsel appearing in both the cases, for the petitioners. For the Public Works Department (PWD) (Roads) and their officers, Mr. D. Nath, the learned Addl. Sr. Govt. Advocate, makes the submission. The private respondents are not however represented. 2. The 2nd petitioner, Gautam Choudhury in the WP(C) No. 6254/2012, has died and therefore for him, the case abates and this order will not cover the deceased litigant. 3. The remaining petitioner Ashutosh Dey in the WP(C) No. 6254/2012 and Rabendra Chandra Dey, who has filed the WP(C) No. 5161/2010, had simultaneously joined on 7.6.1988 as Khalasi in the PWD's Border Road Construction (BRC) Division, Badarpur. The private respondent Siraj Uddin joined in the same capacity, on the next day i.e 8.6.1988 The junior Khalasi Siraj Uddin, was promoted on 18.5.1993, as Work Charge Section Assistant. Two others, namely, Biswajit Roy and Biswatosh Das were directly recruited as Work Charge Section Assistant on 7.4.1992 and 1.9.1992, respectively. 4. Aggrieved by the promotion of Siraj Uddin and the direct recruitment of two others in the higher post of Section Assistant, the Civil Rule No. 376/1997, was filed by the petitioner Ashutosh Dey, along with his deceased colleague Gautam Choudhury. In this proceeding, the Court noted that the service of the two writ petitioners were terminated on 29.8.1988 but then the aggrieved Khalasis filed the Title Suit No. 235/1990 and eventually, on the strength of the order passed by the Civil Court, which was affirmed by the High Court in the Civil Revision, the two terminated Khalasis were reinstated with all benefits, including continuity of service w.e.f the initial date of joining i.e 7.6.1988 5. While dealing with the grievance of the writ petitioners' vis-à-vis the promotion/direct recruitment to the cadre of Section Assistant, the High Court in the Civil Rule No. 376/1997, on 4.5.2005 issued the following order: “……………………………. Under the relevant Rules i.e Assam (Ministerial) District Establishment Service Rules, 1967 a channel of promotion to the extent of 15% of the annual vacancies is provided to Grade-III posts for holders of Grade-IV posts. The promotion made to the respondent No. 4 by order dated 18.5.93 is also suggestive of the fact that the post of Work-Charge Khalasi has been provided with promotional avenue to any Grade-III post. The promotion made to the respondent No. 4 by order dated 18.5.93 is also suggestive of the fact that the post of Work-Charge Khalasi has been provided with promotional avenue to any Grade-III post. If the petitioners are otherwise eligible for promotion and their cases for such promotion have not been considered, surely and certainly, the petitioners are entitled to due consideration of their cases for promotion along with other suitable persons. As the materials on records would go to show that such consideration has been denied to the petitioners, the appropriate order, in the considered view of the Court, that should be passed is to require the respondent No. 3 who is now designated as the Executive Engineer, Patharkhandi BRC Division, Patharkandi, district Karimganj to consider the cases of the petitioners for promotion to Grade-III posts along with other eligible persons and complete the said process within the outer limit of three months from the date of receipt of a certified copy of this order. If the petitioners are found to be entitled for promotion, appropriate orders to that effect may be passed by the respondent No. 3. Before parting with the records, this Court would like to express its reluctance to interfere with the promotion of respondent No. 4 and the appointments of the respondent Nos. 5 and 6 as the circumstances under which such promotions and appointments were made are not before the Court and also in view of the fact that such promotion/appointments were made in the year 1992-93 and more than a decade has elapsed in the meantime. ………………………….”. 6. Since the authorities had failed to consider the promotion of the judgment holders, in terms of the above judgment in the Civil Rule No. 376/1997, the two litigants filed the COP (C) No. 25/2007. This case was disposed of on 20.8.2007, by allowing further four weeks time, to comply with the Court's direction, in the Civil Rule No. 376/1997. 7. Following the above extension of time, the speaking order was passed on 14.9.2007 (Annexure-3) whereby, the claim for promotion was rejected, primarily on the ground that, the judgment holders have not completed 7 years continuous regularized service and therefore, they are disentitled for promotion to the Grade-III post. But it was made clear that when their turn comes, the petitioners shall be considered for promotion. 8. But it was made clear that when their turn comes, the petitioners shall be considered for promotion. 8. Aggrieved by the above speaking order, dated 14.9.2007 (Annexure-3), Ashutosh Dey and Gautam Choudhury filed the second Writ Petition i.e WP(C) No. 6003/2007. In the later case, the learned Judge noted the order passed earlier in the Civil Rule No. 376/1997 and the COP (C) No. 25/2007. The Court also took into account that the junior Siraj Uddin, was promoted as Section Assistant on 18.5.1993 On that basis, the second case was disposed of on 22.4.2010 (Annexure-4), with the following observation: “……………………………. 12. From the facts stated above, it is crystal clear that persons similarly situated have been dissimilarly treated and thereby the petitioners have been subjected to discriminatory treatment in the matter of promotion. In view of the above facts and circumstances, the petitioners have a right to be considered for promotion from the date when their juniors have been promoted. On the ground of discrimination alone, this writ petition deserves to be allowed, which I hereby do. Accordingly the respondents, more particularly, respondent Nos. 2 and 3 are directed to consider the case of the petitioners i.e Ashutosh Dey and Sri. Gautam Choudhury for promotion in accordance with Rules, by particularly taking the facts into consideration that Sirajuddin who is admittedly junior to the petitioners had already been promoted. The authority shall consider the case of the petitioners within a period of 3 (three) months from the date of receipt of the certified copy of this order. ………………………….”. 9. In terms of the above judgment, the claim for promotion was again considered. But under the speaking order dated 14.9.2007 (Annexure-3), the Executive Engineer of the PWD's Border Road Construction, Badarpur Division, rejected the plea for promotion. In the impugned order, the Engineer had however noted that the Judicial Department had advised that the P.W Department may relax the requirement of 7 years experience, for considering promotion of the petitioners. However, the opinion of the Personnel Department was not in tune with the Judicial Department and therefore, the claim for promotion was again negated by the authority. 10. Because of the above speaking order dated 14.9.2012 (Annexure-5), the Contempt Case No. 4/2001 was closed by the Court on 27.9.2012 (Annexure-6), with liberty to challenge the speaking order. Consequently, this case has been filed by the two aspirants. 11. 10. Because of the above speaking order dated 14.9.2012 (Annexure-5), the Contempt Case No. 4/2001 was closed by the Court on 27.9.2012 (Annexure-6), with liberty to challenge the speaking order. Consequently, this case has been filed by the two aspirants. 11. The analogously listed WP(C) No. 5161/2010 has been filed by Rabendra Chandra Dey, claiming the same relief on similar footing but he was not connected with the two earlier litigations i.e the Civil Rule No. 376/1997 or the WP(C) No. 6003/2007. 12. The learned Senior Counsel Mr. H.R.A Choudhury, submits that when the junior colleague Siraj Uddin was promoted as Section Assistant on 18.5.1993 and there was multiple direction by the High Court in the earlier rounds, the authorities should have positively considered the promotion for the petitioners. He further submits that the service of both aspirants was regularized w.e.f 22.7.2005 and therefore on 21.7.2012, they have acquired the seven years eligibility criteria and on that basis, there can be no impediment to promote the petitioners. 13. On the other hand, Mr. D. Nath, the learned Govt. Advocate, refers to the averments in paragraph—9 of the counter affidavit, filed by the Executive Engineer to contend that when the impugned speaking order dated 14.9.2012 (Annexure-5) was passed, the petitioners had not completed the seven years regularized service and on that basis, the Government Advocate justifies the rejection of the claim, under the impugned speaking order. The Govt. Advocate further submits that as the petitioners are working as Khalasis against posts personal to them, they cannot be considered for promotion to the higher position of Section Assistants in the PWD. 14. Before proceeding further with the matter, it is important to refer to the 25.4.2012 file notings of the Judicial Department, where compliance of the Court's judgment in the WP(C) No. 6003/2007 was recommended. The opinion of the Judicial Department, being relevant is extracted here-in-below, for ready reference: “……………………………. It appears that the similarly situated persons referred to in the judgment including the Junior incumbent namely Sirajuddin, all work charged Khalasis came to be promoted/appointed as work charged Section Assistants. Any appointment/promotion under work-charged establishment is virtually not a substantive appointment/promotion. It is a temporary service unless regularized in accordance with law. It appears that the similarly situated persons referred to in the judgment including the Junior incumbent namely Sirajuddin, all work charged Khalasis came to be promoted/appointed as work charged Section Assistants. Any appointment/promotion under work-charged establishment is virtually not a substantive appointment/promotion. It is a temporary service unless regularized in accordance with law. As per affidavit dated 5.8.2008 (Sl.11.c) referred to in judgment, there is no scope of promoting the petitioners to the post of work charged Section Assistant as, at present there is no work charged provision as well as work charged vacant post of Section Assistant available in the Division. Records available indicates that the Writ Petitioner, work charged Khalasis have been regularized in service w.e.f 22.7.2005 as Grade-IV employees. Thus, they appear to be completing 7 years' service shortly. Rested thus, the department may consider the petitioners for promotion to a Grade-III post in accordance with the Assam Ministerial District Establishment Service Rule 1967. If necessary, the department may relax requirement of 7 years' experience in consultation with the Personnel Department. Thus, the department may comply with the judgment and order dated 22.4.2010 passed in WP(C) No. 6003/07. ………………………….”. 15. Following the positive recommendation of the Judicial Department, the Public Works Department wrote to the Personnel Department, to relax the requirement of seven years experience for promotion to the higher cadre of LDA/Section Assistant. The regularization order w.e.f 22.7.2005, for the petitioners was noted to observe that the aspirants satisfy the criteria of experience on 21.7.2012 However the Personnel Department gave a negative opinion and on that basis, the promotion of the two regularized Khalasis, have not been considered. 16. What emerges from the above discussion is that the two petitioners joined service a day prior to Siraj Uddin, who was however promoted to the post of Section Assistant on 18.5.1993 Of course there was a break in service for the petitioners' in the WP(C) No. 6254/2012 but this was adequately addressed by the order passed by the Civil Court whereby the terminated Khalasis were reinstated in their job, with continuity of service. 17. The case papers reflect that the regularization of service of Siraj Uddin was also w.e.f 22.7.2005 but he was promoted to the higher post on 18.5.1993, even without regularization. This perhaps was a mistaken promotion. 17. The case papers reflect that the regularization of service of Siraj Uddin was also w.e.f 22.7.2005 but he was promoted to the higher post on 18.5.1993, even without regularization. This perhaps was a mistaken promotion. But although the promotion order of Siraj Uddin was challenged in the Civil Rule No. 376/1997, that promotion was left undisturbed. Hence, this Court is refraining from making any further comments on the promotion of Siraj Uddin, even before his service came to be regularized. 18. However, in so far as the two Khalasis who joined service a day before the promotee, notwithstanding the Court's categorical observation on the discriminatory promotion, vis-à-vis the junior Khalasi (Siraj Uddin), the promotion for the petitioners have not been considered. It may be because the Executive Engineer, who passed the speaking order dated 14.9.2012 (Annexure-5), failed to comprehend the High Court's direction, under the undisturbed judgment in the WP(C) No. 6003/2007 and in the Civil Rule No. 376/1997. 19. It is important to note at this stage that, in the earlier round, the authorities had not questioned the legitimacy of the claim for promotion. Be that as it may, since the concerned judgments of the High Court have attained finality, it will be unfair to deny consideration for the similarly situated Khalasis, who are aggrieved by the promotion of their junior colleague Siraj Uddin, to the post of Section Assistant. This aspect was wholly ignored in the speaking order, challenged in this proceeding. 20. In view of such conclusion, I deem it appropriate to direct the Commissioner & Secretary, to the Govt. of Assam, Public Works Department (Roads), to apply his mind to the observation and the direction in the Civil Rule No. 376/1997 and in the WP(C) No. 6003/2007 and also the file notings made by the Judicial Department on 25.4.2012 The Authority should also take note of the fact that the services of the petitioners and Siraj Uddin were regularized from the same date i.e w.e.f 22.7.2005 With due application to these facts, the Commissioner should pass a speaking order, in light of the direction given by the Court for consideration of promotion to the higher cadre of Section Assistant/LDA. To facilitate the consideration, the petitioners should furnish a copy of this order and the requisite exercise is ordered to be carried out within eight weeks of receipt of intimation. It is ordered accordingly. 21. To facilitate the consideration, the petitioners should furnish a copy of this order and the requisite exercise is ordered to be carried out within eight weeks of receipt of intimation. It is ordered accordingly. 21. With the above order, both cases stand allowed, without any order on cost.