JUDGMENT P.G. Agarwal, J. 1. I have heard Mr. H. Roy, learned Counsel for the Petitioners and also heard Mr. A.K., Goswami, learned Counsel for private Respondent No. 4 and Mr. N.C. Phukan, learned Senior Government Advocate for the Respondent/State and Mr. K. Goswami, learned Counsel for Respondent Nos. 3, 4, 6, 9, 15 and 16. 2. In this writ petition, the dispute is in between the direct recruit and promotee to the post of Sub-Inspector, Food and Civil Supplies. The appointment to the post of Sub-Inspector of Food and Civil Supplies is governed by the Assam Supply Services Rules, 1970 and the said Rules had originally provided for direct appointment to the said post. In the year 1989 vide order dated 21.3.89 the said Rules were amended providing that 75% of the vacancy in the cadre of S.I. of Food and Civil Supplies shall be filled up by direct recruitment and the remaining 25% shall be filled up by promotion from the select list prepared for this purpose. The dispute in the present writ petition is in respect of the appointment made in the year 1992. In the month of January 92, 19 Petitioners before us were appointed as direct recruit, whereas the Private Respondents No. 3 to 25 were appointed on promotion in the month of March, 1991. The provisional gradation list was published on 30.3.1990 and thereafter a final gradation list of 173 S.I. as on 1.12.98 was published vide letter No. DSE. 62/97/106 dated 1.12.98. Some of the Respondents, feeling aggrieved by the said order of final gradation list approached the Administrative Tribunal, Assam in Case No. 26ATA/99 where in some of the Petitioners before us were also party/Respondents. The said case was disposed of by the Tribunal vide order dated 15.9.99 with the following observation and direction: 19. The learned Counsel of the Appellants submits that, according to the standing Government instructions under No. AAP. 27/50 dated 31.3.60 of the then Appointment Department of the Government of Assam, a promotee appointed is to be given seniority over a direct recruit appointed and it is also reiterated in the draft model service Rules, circulated by the Administrative Reforms and Training Department of the State Government in the framing of the service rules for the State Government employees, for whom the service rules are yet to be framed. The learned Counsel of the Appellants prays to the Tribunal for directing the Government of Assam for taking a final decision in the matter regarding the issue of inter-se-seniority between a promotee S.I. of F and CS and direct recruit SI under the F and CS Department of the State Government. 20. The learned Senior Government Advocate states that the Tribunal may be pleased to issue direction to the Government of Assam for considering the whole matter and to take appropriate decision with regard to the issue of inter-se-seniority between a promotee S.I. of F and CS under the F and CS Department and a direct recruit SI of F and CS under the Department. 21. We have considered the matter. 22. From a consideration of the chronology of the events as stated above, it is obvious that there has been an omission on the part of the Government of Assam in not explicitly laying down a provision by amending the existing provision of the Rule 32 of the Assam Supply Service Rules, 1970 in the matter of inter se-seniority between a promotee Sub-Inspector of Food and Civil Supplies and a direct recruit sub-Inspector of Food and Civil supplies, when the State Government, as per the Assam Supply Service (Amendment) Rules, 1989 introduced the provision of filling up 25% of the vacancies in the post of Sub-Inspector of Food and Civil Supplies by promotion and remaining 75% by way of direct recruitment as against the earlier provision of filling up the entire vacancies in the post of Sub-Inspector of Food and Civil Supplies by direct recruitment. In view of this position of the matter, it is essential to make an explicit provision in the matter by incorporating a suitable amendment to the existing provision of Rule 32 of the Assam Supply Service Rules, 1970. In view of the urgency and importance of the matter, it should be taken up on a top priority basis. This exercise should be completed within 31st December, 1999. We direct the Secretary to the Government of Assam, Food and Civil Supplies Department (on behalf of the State of Assam) to take immediate necessary action on the matter. A compliance report is to be submitted by him to the Tribunal within one week thereafter, i.e. within 7.1.2000. 23. This exercise should be completed within 31st December, 1999. We direct the Secretary to the Government of Assam, Food and Civil Supplies Department (on behalf of the State of Assam) to take immediate necessary action on the matter. A compliance report is to be submitted by him to the Tribunal within one week thereafter, i.e. within 7.1.2000. 23. Subject to the directions, stated above the appeal case is disposed of There is no order as to cost. Thereafter by Notification dated 5th of May/2000, the Rules of Assam, Food and Civil Supplies Rules were amended and the Rule 32(6) was inserted to the following effect: 3. In the Principal Rule, in Rule 32, after Sub-rules (5) the following new Sub-rule (6) shall be inserted namely- (6) The inter-se-seniority of Sub-Inspectors of Food and Civil Supplies appointed under Sub-rule (2) of Rule 11, as amended, shall be fixed over the Sub-Inspector of Food and Civil Supplies appointed under Sub-rule (1) of Rule 11, as amended, if promotion and direct recruitment take place in the same year. Purpsunt to the said amendment a provisional gradation list was published on 15.5.2001 wherein Respondents No. 3 to 25 were given seniority over the writ Petitioners and hence the present writ petition. 3. Shri K. Goswami, learned senior advocate has at the out set submitted that under Article 309 of the Constitution of India, Rule making power is in the executive domain of the Governor and Administrative Tribunal, Assam has no jurisdiction to direct framing of Rules. The decision of the Tribunal was not challenged and we find that the Governor, in exercise of the powers under Article309, had framed the amended Rules by Notification dated 5th of May/2000. Hence, we do not like to enter into the question as to whether the Tribunal had the power to direct framing of rules or not. 4. The next submission of the learned Counsel for the Petitioners is that prior to 1989 amendment, there was no provision for appointment to the post of S.I. by way of promotion and the Rules, as it existed, provided that the seniority shall be fixed from the date of appointment and in the 1989 amended Rules also, there was no provision for fixing inter-se seniority between the promotee and direct recruit and hence the Government fixed the final gradation list fixing the seniority from the date of appointment. 5. 5. It is further submitted that the Tribunal did not quash the final gradation list and as such the right vested on the Petitioners on the strength of the said gradation list can not be taken away by subsequent Notification, which has been impugned in this writ petition. More-over, amended service Rules of 2000 dated 5.5.2000 are directed to come into force with effect from the date of issuance of the same and it was not made effective with the retrospective effect. It is submitted that Rules can not be amended to disturb a vested rights. The learned Counsel for the Petitioners has placed reliance on the observation of the Apex Court in the case of Union of India and Ors., Appellants v. Tushar Ranjan Mohanty and Ors., Respondents (1994) SCC 450, wherein the Apex Court observed as follows: 14. The Legislatures and the competent authority under Article 309 of the Constitution of India have the power to make the laws with retrospective effect. This power, however, can not be used to justify the arbitrary, illegal or unconstitutional acts of the Executive. When a person is deprived of an accrued right vested in him under a statute or under the Constitution and he successfully challenges the same in the Court of law, the legislature can not render the said right and the relief obtained nugatory by enacting retrospective legislation. 6. In this case we are not concerned with the retrospective effect of the amended rules as the Rules are directed to come into force prospectively. There is no dispute at the bar that the Tribunal in its judgment dated 15.9.99 has not expressly set aside or quashed the final gradation list dated 1.12.98. It is, therefore, submitted on behalf of the writ Petitioners that in view of the specified amendment of 2000, the Government had no jurisdiction or power to alter the gradation list which had received its finality in the year 1998. 7. It is also submitted that as gradation list dated 1.12.98 was not quashed or set aside, the Petitioners did not prefer any appeal against that order. 7. It is also submitted that as gradation list dated 1.12.98 was not quashed or set aside, the Petitioners did not prefer any appeal against that order. Shri Goswami, on the other hand submits that if the judgment of the Tribunal is read as a whole, the Tribunal did not hold that the earlier gradation list was not a proper list and as Rule 32 of the 1973 Rules remain silent and there was no specific provision under the Rules for fixation of seniority inter-se between promotee and the direct recruitment, the matter was required to be referred to the State Government. Accordingly, the State Government was directed to make necessary provisions in the Rules on that score within a fixed time frame and even a date for submission of compliance report was fixed. Hence, it is submitted that the Tribunal found the 1998 gradation list to be of no effect, otherwise, the entire exercise by the Tribunal will amount to a futile exercise. The submissions made on behalf of the Government were also recorded in paragraph-20 as quoted above and it goes to show that the above and it goes show that the State Government also took up the stand that the Rules are required to be amended for fixing inter-se seniority in between the direct recruit and the promotees. The chronology of events and the related amendment made to the rules from time to time, shows that the appointment on promotion was first introduced in the year 1989, but the corresponding rules regarding fixation of inter-se seniority between the promotees and direct recruits were not provided for and in the 1998 gradation list, the seniority was fixed on the basis of 1970 Rules, where there was no provision for such eventuality or appointment by way of promotion. The Tribunal also held that in such cases, fixation should have been done in the light of the Government standing instruction. When the rules are silent on the matter, the general instruction, if any, should have been applied, but the gradation list dated 1.12.98, did not take into consideration the general standing instructions. 8. The Tribunal also held that in such cases, fixation should have been done in the light of the Government standing instruction. When the rules are silent on the matter, the general instruction, if any, should have been applied, but the gradation list dated 1.12.98, did not take into consideration the general standing instructions. 8. On perusal of the order passed by the Tribunal, we find force in the submissions of Sri Goswami that if the judgment is read as a whole, it says that the 1998 gradation list was not in-accordance with law and the matter was required to be examined afresh as prayed for by the State Government. The omission to state that the gradation list of 1998 stands quashed can not stand in the way of the Government is to amend the Rules and to make proper gradation list. It may be mentioned here that the amended rules of 2000 have not been challenged in this writ petition and we are constrained to hold that the technicalities or omission will not be allowed to stand in the matter of doing justice to the parties, keeping in mind by the tenure of service before promotion and in view of the general circular, the promotees should have been given seniority over direct recmit and amendment rules of2000 provided for the same. 9. The learned Counsel for the Petitioners further submitted that during pendency of this writ petition, 58 persons of the said gradation list of 1.12.98 were promoted. The promotion was made vide order dated 6.4.2000, i.e. prior to the amendment of the Rules and after the judgment passed by the Tribunal. These promotions are not under challenge in this writ petition and we restrain ourselves from commenting anything with regard to the same. 10. In view of the aforesaid, we find no merit in this writ petition and the writ petition is accordingly dismissed. Petition dismissed