( 1 ) IN this petition under Art. 226 of the Constitution, the controversy is in regard to the relative seniority as between the petitioner and respondents 3 to 49 in the cadre of Commercial Tax Inspectors and the relative seniority as between the petitioner and respondents 3 to 80 in the cadre of assistant Commercial Tax Officers. The petitioner has prayed for quashing the seniority list of Commercial Tax Inspectors as on 1-1-1969- (Ext. D) and the seniority list of Assistant Commercial Tax Officers as on 1-12-1968 (Exhibit C ). ( 2 ) CERTAIN material facts which are not in dispute may be stated: at the instance of the. Government, the Public Service Commission prepared a list of the candidates selected for the posts of Commercial Tax inspectors and that list was published in the Mysore Gazette dt. 13-8-1959 (Ext. A ). The Public Service Commission forwarded that list to the Commissioner of commercial Taxes in Mysore (hereinafter referred to as the commissioner ). By the order of the Commissioner dt. 13116-10-1959 (Annexure 2 to the counter affidavit on behalf of respondents i and 2), 47 officials in the cadre of first Division Clerks were promoted as Commercial tax Inspectors on a temporary basis pending finalisation of equation of posts and they were posted to several places shown in that order. By the order of the Commissioner dt. 20-10-1959, 94 persons out of list, Ext. A, including the petitioner, were appointed as Commercial Tax Inspectors. The order stated that those appointees should undergo training, and that on completion of such training, if they were found fit, the Deputy Commissioner of commercial Taxes, would give them posting orders. ( 3 ) RESPONDENTS 3 to 49 who were promotees, were placed above the aforesaid 94 direct recruits in the seniority list of Commercial Tax Inspectors. In August 1965, 18 Commercial Tax Inspectors were promoted as assistant Commercial Tax Officers temporarily. At that time the petitioner's case was considered for promotion to the cadre of Assistant Commercial Tax Officers, but he was regarded as not eligible as he had not passed certain departmental examinations. Several Commercial Tax Inspectors promoted then as Assistant Commercial Tax Officers, were juniors. to him. On 4-9-1965 respondents 50 to 80 who were selected by the Public service Commission were appointed as Assistant Commercial Tax Officers on probation. The Government created super-numerary posts of 31 Asst. Several Commercial Tax Inspectors promoted then as Assistant Commercial Tax Officers, were juniors. to him. On 4-9-1965 respondents 50 to 80 who were selected by the Public service Commission were appointed as Assistant Commercial Tax Officers on probation. The Government created super-numerary posts of 31 Asst. Commercial Tax Officers at that time and posted these 31 direct recruits against those super-numerary posts They were given training in the commercial Tax Department for about a year during which period they were paid and salary of Rs. 200 per month and after such training they were placed in regular charge of the posts of Asst. Commercial Tax Officers. ( 4 ) AFTER the decision of this Court in WP. 698 of 1967 and connected writ petitions holding that the departmental examinations had not been validly prescribed for the purpose of promotion, the cases of the petitioner and other Commercial Tax Inspectors who had not been promoted on the ground of not having passed the departmental examinations, were reviewed, and they were promoted as Asst. Commercial Tax Officers with effect from the da,tes on which their juniors were promoted. Respondents 50 to 80 who were direct recruits, were placed above the petitioner in the cadre of asst. Commercial Tax Officers. ( 5 ) IN this petition, the petitioner has contended that in the cadre of commercial Tax Inspectors, he should have been placed above respondents 3 to 49 who were promotees. He has also contended that as his deemed promotion from the cadre of Commercial Tax Inspector to the cadre of Asst. Commercial Tax Officer, was with effect from August 1965, he should have been placed above respondents 50 to 80 who were directly recruited as Asst. Commercial Tax Officers in September 1965. Both the claims of the petitioner have been resisted by the Government and the commissioner. ( 6 ) MR. Commercial Tax Officer, was with effect from August 1965, he should have been placed above respondents 50 to 80 who were directly recruited as Asst. Commercial Tax Officers in September 1965. Both the claims of the petitioner have been resisted by the Government and the commissioner. ( 6 ) MR. S. C. Javali, learned Counsel for the petitioner, contended that before respondents 3 to 49 were promoted as Commercial Tax Inspectors, the list of selected candidates for the posts of Commercial Tax inspectors by the Public Service Commission, was available and that it was the duty of the Commissioner to appoint the candidates so selected to the posts of Commercial Tax Inspectors before respondents 3 to 49 were promoted as Commercial Tax Inspectors In the affidavit in support of the petition, it is averred that the communication of the orders appointing direct recruits as Commercial Tax Inspectors, started on 16-10-1959 and that he (the petitioner) received on 23-10-1959, the order appointing him as Commercial Tax Inspector. In substance, the contention of the petitioner was that the order appointing him and other direct recruits, was earlier to the promotions of respondents 3 to 49 as Commercial Tax inspectors. ( 7 ) THE learned Government Advocate produced the relevant records of the Office of the Commissioner. It is seen from those recrods that on the left hand margin of the list of selected candidates sent by the Public service Commission to the Commissioner, there is a note ' Issue as noted' below that note the initials of the Commissioner and date, 16-10-1959, were put. According to Mr. Javali, that note, by itself, constituted the order of the Commissioner appointing the petitioner and other direct recruits as Commercial Tax Inspectors and what the petitioner received on 23-10-1959 was merely a communication of that order made on 16-10-59. ( 8 ) I am unable to accept the contention of Mr. Javali that what was written by the Commissioner on 16-10-1950 in the margin of the list of the selected candidates, should itself be construed as the order appointing the petitioner as Commercial Tax Inspector. What the Commissioner wrote on the margin of that list on 16-10-1959, should, in my opinion, be regarded as an instruction to his office to prepare the order or orders appointing the persons noted by him in that list and to issue such order or orders. What the Commissioner wrote on the margin of that list on 16-10-1959, should, in my opinion, be regarded as an instruction to his office to prepare the order or orders appointing the persons noted by him in that list and to issue such order or orders. Until such orders were issued, the process of appointing the petitioner and other persons noted by the Commissioner, was inchoate. Before that order was issued, it was open to the Commissioner to withdraw, cancel, modify or postpone that order. ( 9 ) IT is seen from those records of the Commissioner, that the decision to promote respondents 3 to 49 as Commercial Tax Inspectors, was taken much earlier to 16-10-1959 and that the order promoting them was. issued on that date. Hence, it cannot be said that respondents 3 to 49 were promoted as Commercial Tax Inspectors subsequent to the appointment of the petitioner and other direct recruits as Commercial Tax Inspectors. ( 10 ) MR. Javali referred to the Recruitment Rules of the Commercial tax Department made by the Governor under the proviso to Art. 309 of the Constitution, which came into force on 28-5-1959. According to those rules, 66-213 per cent of the posts of Commercial Tax Inspectors had to be filled by direct recruitment and 33-113 per cent of such posts had to be filled by promotion from the cadre of First Division Clerks Mr. Javali contended that it was not permissible for the authorities to place the promotees en bloc above all the direct recruits in the order of seniority and that when direct recruitment and promotions were made more or less at the same time, the direct recruits had to be placed above the promotees or, at any rate, direct recruits and promoters should have been posted in rotation in the ratio 2:1. 10a. In M. Devara Kondappa v. Siate of Mysore (1), the petitioner was also a direct recruit who was appointed along with the present petitioner as commercial Tax Inspector. There, also a similar contention was urged. Repelling that contention this is what Hegde, J. , who spoke for the Bench said :" All that is required is that out of the total available vacancies, one-third should be given to the promotees and two-thirds to the direct recruits. There, also a similar contention was urged. Repelling that contention this is what Hegde, J. , who spoke for the Bench said :" All that is required is that out of the total available vacancies, one-third should be given to the promotees and two-thirds to the direct recruits. It is left to the recruiting authority to fill up those posts in whatever manner that authority pleaded; but it should maintain the proportion mentioned in the Rule. " ( 11 ) IN view of the above pronouncement of this Court the petitioner's claim that he should be placed above respondents 3 to 49 in the order of seniority, is unsustainable. However, Mr. Javali contended that in the aforesaid decision certain material facts which are now available, were not placed before their Lordships and that hence that decision should not be followed in the preasent case. Those material facts, according to Mr. Javali, are the dates on which the Commissioner took the decision to appoint dir,ect recruits and to promote respondents 3 to 49. As seen earlier, the order promoting respondents 3 to 49 as Commercial Tax Inspectors was earlier to the order appointing the petitioner directly as Commercial Tax inspector. Hence, there is absolutely no ground for not following the earlier decision of this Court in Devarakondappa v. State of Mysore WP. 227 of 1963. ( 12 ) THE next claim of the petitioner was that he should have been, placed above respondents 50 to 80 in the order of seniority of Asst. Commercial tax Officers. As stated earlier, the petitioner was deemed to have been promoted to the cadre of Asst. Commercial Tax Officers in August, 1965, while respondents 50 to 80 were appointed on probation as Asst. Commercial Tax Officers in September, 1965. Mr. Javali argued since the petitioner was deemed to have been officiating as Asst. Commercial Tax officer from a date earlier to the date of appointment of respondents 50 to 80, he should be regarded as senior to them under Rule 2 (c) of the Mysore government Servants' (Seniority) Rules, 1957 (hereinafter referred to as the Seniority Rules ). ( 13 ) THE relevant part of Rule 2 (c) of the Seniority Rules reads :" 2 (c) Seniority inter se of persons appointed on temporary basis will be determined by the dates of their continuous officiation in that grade. . . . . . . . ( 13 ) THE relevant part of Rule 2 (c) of the Seniority Rules reads :" 2 (c) Seniority inter se of persons appointed on temporary basis will be determined by the dates of their continuous officiation in that grade. . . . . . . . . . . . ( 14 ) IN the counter-affidavit filed on behalf of the State, the basis for treating respondents 50 to 8c as seniors to the petitioner, has beon explained thus: according to the Recruitment Rules of the Commercial Tax department made on 25-1-1964, 50 per cent of the posts of Asst. Commercial tax Officers had to be filled by direct recruitment and the remaining 50 per cent by promotion Certain Commercial Tax Inspectors were promoted in august, 1965 against the posts which had to be filled by direct recruitment as the direct recruits were still not available. A candidate promoted against a direct recruitment vacancy, cannot claim seniority over a direct recruit so long as he (the promotee) continues in such direct recruitment vacancy. Hence, the officials who v/ere promoted against' direct recruitment vacancies as Asst. Commercial Tax Officers, were not given seniority in that cadre and their seniority counted only from the dateg on which they could be posted in promotional vacancies. Merely because the petitioner and others were promoted against direct recruitment vacancies of asst. Commercial Tax Officers and were continued without break, they could not claim seniority over respondents 50 to 80 who were appointed in such direct recruitment vacancies. ( 15 ) IN support of the above plea on behalf of the State, the learned government Advocate relied on Clause (c) of Rule 17 of the Mysore State civil Services (General Recruitment) Rules, 1957, (hereinafter referred to as the General Recruitment Rules ). That Clause was added to that Rule with effect from 2-1-1965. The material part of that Rule reads :" 17. Appointment by direct recruitment or promotion in certain cases-Notwithstanding any tiling contained in these rules or in the rules of recruitment specially made in respect of any service or post, the appointing authority may- (9 ). . . . . . . . . . . . . . . (b ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (b ). . . . . . . . . . . . . . . . (c) fill up by promotion temporarily on the basis of seniority-cum- merit any vacancy relating to a post which is required to be filled by direct recruitment where selection to the post has not been finally made and there is likelihood of undue delay in making direct recruitment to the post or where the candidate selected for the post as per recruitment rules has not yet joined duty. Such promotion shall be made only after a requisition has been sent to the Commission or to the appropriate Recruitment Committee for selection of a suitable candidate. A candidate temporarily promoted under this sub-rule shall not have any preferential claim for regular promotion and also shall not count the period of service in the promoted post for seniority; he shall revert to his original post on the expiry of one year or on the appointment of a direct recruit selected in accordance with the rules of recruitment applicable to the posl whichever is earlier. . . . . . . " ( 16 ) THE effect of Clause (c) of Rule 17 was explained thus by narayana Pai, CJ. , who spoke for the Bench in WP. 192 of 1972 (2) and connected petitions :" If however, promotions are made to vacancies in excess of the promotional quota, the promotions may not be totally illegal but would certainly be irregular and the promotees cannot claim indefeasible right to hold the promotional posts; on the contrary, they will be liable to be reverted if and when direct recruitment is resorted for the purpose of filling the vacancies in excess of the promotional quota which, by virtue, of the provision under the relevant rules, are required to be filled by direct recruitment. The said liability for reversion is one of the demerits or circumstances to be noticed in deciding the relative seniority as between direct recruits on the one hand and the promotees on the other. . . . . . . . But promotions made in respect of vacancies in excess of the promotional quota would be irregular and persons promoted thereto will have to make room for direct recruits. . . . . . . . But promotions made in respect of vacancies in excess of the promotional quota would be irregular and persons promoted thereto will have to make room for direct recruits. The principle underlynig the said processes is the principle derivable from rule 17 of the General Recruitment Rules, viz. , that a person who is promoted to A vacancy which is required by the rules to be filled by direct recruitment is liable to be reverted and cannot claim any preferential promotion which must be regarded as tentative promotion. " ( 17 ) HOWEVER, Mr. Javali contended that the above observations of his Lordship are not applicable to the present case because Clause (c) of rule 17 of the General Recruitment Rules are not applicable to recruitment in the commercial Tax Deparmtent as there is a special provision in the Recruitment Rules of the Commercial Tax Department in regard to promotions to direct recruitment vacancies of Asst. Commercial Tax officers. The special provision relied on by Mr. Javali is a proviso inserted in the Schedule to the Recruitment Rules of the Commercial Tax department by the Government Notification dt. 6-4-1966 and the proviso- is given retrospective effect from 1-12-1962. That proviso reads :" Provided that where any vacancy in the cadre of Asst. Commercial Tax officers to be filled by direct recruitment under Clause (1) cannot be filled on account of the non-availability of list of candidates eligible for appointment as Asst. 6-4-1966 and the proviso- is given retrospective effect from 1-12-1962. That proviso reads :" Provided that where any vacancy in the cadre of Asst. Commercial Tax officers to be filled by direct recruitment under Clause (1) cannot be filled on account of the non-availability of list of candidates eligible for appointment as Asst. Commercial Tax Officers, the said vacancies may, notwithstanding anything contained in Rule 17 of the mysore State Civil Services (General Recruitment) Rules, 1957, be filled temporarily by promotion from the cadres of Commercial Tax inspectors and Stenographers of an officer, who is eligible for appointment by promotion under Clanse (ii), subject to the advice of the mysore Public Service Commission, but the period of such appointment shall not exceed three years or the period required for filling up the post by direct recruitment including the period of probation of the candidate appointed by direct recruitment, whichever is earlier and the person so promoted shall be liable to be reverted to the cadre of commercial Tax Inspectors and Stenographers, as the came may be, at any time or at the expiry of the period aforesaid as the appointing authority deems fit, unless he la continued in any promotional vacancy which may arise before such reversion. " ( 18 ) MR. Javali argued that when there is a special provision in the recruitment rules of a particular Department or a cadre of service, that special provision should prevail over the corresponding general provision in the General Recruitment Rules and that hence the aforesaid proviso excludes the application of Clause (c) of Rule 17 of the General Recruitment rules. It was also contended by Mr. Javali that the aforesaid proviso does not state that the period of service rendered by promotee in a direct recruitment vacancy of Asst. Commercial Tax Officer, should be excluded in determining the relative seniority as between a direct recruit and a promotee temporarily promoted in a direct recruitment vacancy of assistant Commercial Tax Officer. ( 19 ) IT is true that in the aforeaid proviso in the Recruitment Rules of the. Commercial Tax Department, it is not expressly stated that when an official is temporarily promoted as Asst. Commercial Tax Officer in a direct tjecruitment vacancy, the period of his service in such vacancy shall not be counted for the purpose of his seniority vis-a-vis a direct recruit subsequently appointed to fill that vacancy. Commercial Tax Department, it is not expressly stated that when an official is temporarily promoted as Asst. Commercial Tax Officer in a direct tjecruitment vacancy, the period of his service in such vacancy shall not be counted for the purpose of his seniority vis-a-vis a direct recruit subsequently appointed to fill that vacancy. But, mere absence of such provision in that proviso does not exclude the application of Cl. (c) of Rule 17 of the General Recruitment Rule, The material portion of Cl. (a) of sub-rule (3) of Rule 1 of the Mysore General Recruitment Rules, reads :" 1 (3) (a ). These rules shall apply to recruitment to aft. State civil Services and to the holders of all posts whether temporary or permanent except to the extent otherwise expressly provided: (i) by or under any law for the time being in force, or (ii ). . . . . . . . . . . . . . . . " (Underlining (italics) la mine ). ( 20 ) THUS, the whole of the General Recruitment Rules are not rendered inapplicable merely because separate recruitment rules are made for any Department or any cadre of service. Except to the lextent otherwise expressly provided in the special rules of recruitment made for any department or cadre, the provisions of the General Recruitment Rules are still applicable. As the! aforesaid proviso in the Recruitment Rules to the commercial Tax Deparment, does not expressly state whether or not the period of service of a promotes in a direct recruitment vacancy of Asst. Commercial Tax Officer, should be counted for determining his seniority vis-a-vis a direct recruit to that vacancy, there is no exclusion of the provision of clause (c) of Rule 17 of the General Recruitment to the effect that such service, shall not be counted for determining such relative seniority. ( 21 ) THE mere fact that the petitioner was not reverted from but continued in the post of Asst. Commercial Tax Officer after respondents 50 to 80 were directly recruited as Asst. Commercial Tax Officers on probation, does not make any difference for the application of Clause (c) of Rule 17 of the General Recruitment Rules. ( 22 ) HOWEVER, Mr. Javali adverted to the facts that respondents 50 to 80 were posted against 31 super-numerary posts of Asst. Commercial Tax Officer after respondents 50 to 80 were directly recruited as Asst. Commercial Tax Officers on probation, does not make any difference for the application of Clause (c) of Rule 17 of the General Recruitment Rules. ( 22 ) HOWEVER, Mr. Javali adverted to the facts that respondents 50 to 80 were posted against 31 super-numerary posts of Asst. Commercial Tax officers created in September 1965, that they were treated as probationers and were paid a salary of only Rs. 200 per month during the period of probation and that they were not put in charge of regular posts during that period of one year. According to Mr. Javali these circumstances would show that the intention of the Government was that those direct recruits (respondents 50 to 80) should be placed below the petitioner and other promotees promoted in direct recruitment vacancies and subsequently continued in the cadre of Asst. Commercial Tax Officers. ( 23 ) IN the counter-affidavit filed on behalf of the State, it has been explained that these 31 super-numerary posts were created with a view to give direct recruits training for one year before they were regularly posted as Aset. Commercial Tax Officers and that mere creation of such super- numerary posts did not confer any right on the petitioner to claim seniority over respondents 50 to 80. ( 24 ) WHETHER or not the Government was correct in posting respondents 50 to 80 in the super-numerary Posts, the operation of Rule 17 (c) of the General Recruitment Rules does not depend upon what the Government did or intended. The operation of a statutory provision cannot be defeated by any pxecutive act of the Government. ( 25 ) RULE 2 (c) of the Seniority Rules is a general provision, while rule 17 (c)of the General Recruitment Rules constitutes a special provision in regard to determining relative seniority between direct recruits and promotees, when promotees have been posted in direct recruitment vacancies. Hence, in the circumstances of this oase, Rule 17 (c) must prevail over Rule 2 (c) of the Seniority Rules. ( 26 ) THUS all the contentions urged by Mr. Javali must fail. In the result, I dismiss this petition. But, in the circumstances of the case, the parties are directed to bear their own costs. --- *** --- .