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10. Averments in the Counter:- Resisting the Writ Petitions, Government filed counter-affidavit supporting G.O.Ms.No.1396 Home dated 03.10.2007. In the counter-affidavit filed by the Government, it was averred that the main intention of the Government for creating supernumerary posts at huge cost is to avoid stagnation in further promotion of seniors in the lower cadre of the accelerated promotees. By G.O.Ms.No.1396 Home dated 03.10.2007 the further promotion and interest of the personnel, who were seniors to the accelerated promotees in the lower cadre, are protected. The qualifications prescribed in the Service Rules have to be relaxed infavour of the personnel, who were involved in the Special Task Force operation including the Appellants as one time measure so as to accommodate them in the accelerated promotion list. The police personnel, who were regularly empanelled and seniors to the accelerated promotees in their lower cadre have protested by saying that the accelerated promotees should not get any higher seniority in view of such accelerated promotion. This was considered by the Government and the anomaly was set right by passing G.O.Ms.No.1396 Home dated 03.10.2007. It was averred that there is no special rule for giving consequential seniority to accelerated promotees among police personnel in the Special Rules for Tamil Nadu Police Subordinate Service or in other statutory rules. The seniority of service is fixed as per Rule 35 of General Rules in TNS & SS Rules. As per the said Rule, the seniority of a person shall, unless he is reduced to lower rank as punishment should be determined either by rank obtained by him in the list of approved candidates drawn by the Tamil Nadu Public Service Commission or State appointing authorities as the case may be or the date of appointment. It was further averred that giving consequential seniority to accelerated promotees may lead to a situation of reduction in rank of their seniors in the lower category, for no fault of them. The executive orders will not prevail over statutory rules. There is no provision for giving accelerated consequential seniority in higher stages also and the counter-affidavit sought for dismissal of the Writ Petitions.

71. First of all, it should not be forgotten that the question of applicability of Rule 35(aa) would arise only when the promotion was made in accordance with Rule 36(b)(ii)(2). As we have found that the promotion was not made in accordance with rules and it is not a promotion under Rule 36(b)(ii)(2), consequently, such promotion having been granted outside the purview of the Rules cannot have any consequential benefit of accelerated seniority as well. Even assuming that the promotion was made under Rule 36(b)(ii)(2), then again by applying Rule 35 (aa), the accelerated promotees cannot over look their seniors to get accelerated seniority in the promoted post.

87. As pointed out earlier, after the dismissal of the Writ Petitions, Government issued G.O.Ms.No.227 Home dated 25.02.2010 giving effect to G.O.Ms.No.1396 dated 03.10.2007 and amending Special Rules for Tamil Nadu Police Subordinate Service, 1978 adding sub-rule (g) to Rule 24. After the amendment, as per Rule 24(g) of Special Rules for Tamil Nadu Police Subordinate Service, the interse seniority between the accelerated promotees and the general promotees in the promoted category in the order of seniority in the feeder category and lower category and accelerated promotees will not confer any consequential seniority on such accelerated promotees either in the feeder category or promoted category. As per the revised seniority list, accelerated promotees were shown in the list as per the original seniority in the feeder category.

88. There is no gainsaying that those who served in the Special Task Force with better performance deserve better treatment. But this has to be done within the frame work of the existing rules. Since accelerated promotion was made without reference to any statutory rules and with a view to clarify the ambiguity, the Government has rightly issued G.O.Ms.No.1396 Home dated 03.10.2007. If promotion was based on merit cum ability and if the person was accommodated in the substantive vacancy in the higher category, the person can seek accelerated seniority as well. Unless such promotion so conferred was made within the rules, there is no question of granting accelerated seniority.