Judgment :- Prabha Sridevan, J. The second respondent was working as an Accountant in AIR, Alleppey in the year 1978. Thereafter, he was promoted as Administrative Officer and posted at the Doordarshan Kendra, Guwahati by order dated 29.4.1985. He could not join the post due to family circumstances. He submitted a representation to the second petitioner on 8.5.1985. On his representation, the second petitioner canceled the earlier order dated 20.9.1985 and changed the place of posting of the second respondent from AIR, Guwahati to AIR, Dharwad. The second respondent was relieved from AIR, Calicut on 5.10.1985 and he took charge as Administrative Officer at AIR, Dharwad on 11.10.1985. on 30.10.1989, the second respondent was promoted as Senior Administrative Officer and posted at the Doordarshan Kendra, Bangalore. Later, he was transferred to Trivandrum in the same capacity. On 1.12.1993, the second respondent was promoted as Inspector of Accounts on ad hoc basis and was posted at the Staff training Institute, Trivandrum. On 27.1.1994, the second respondent was promoted as Deputy Director on ad hoc basis and was posted at Madras. On 8.8.1995, the first petitioner published a list of persons promoted on regular basis to the post of Deputy Director. Petitioners 3 and 4, who were juniors to the second respondent, were promoted to the post of Deputy Director, while the second respondent was not promoted. In the seniority list, the name of the second respondent is shown at Serial Number 20, whereas petitioners 3 and 4 are shown at 40 and 41. In the seniority list of Senior Administrative Officers, again, the name of the second respondent figures above the names of petitioners 3 and 4. The second respondent, therefore, filed O.A. No.77 of 1997 to direct petitioners 1 and 2 to promote him as Deputy Director (Administration) on regular basis with effect from the date on which his juniors, viz., petitioners 3 and 4 were promoted, and to give him all consequential benefits. This O.A. was allowed and therefore, this writ petition has been filed. 2. The main reason why the petitioners did not consider the second respondent eligible to be promoted as Deputy Director was because at the time when his name was considered by the DPC in October, 1993, the second respondent's service fell short by ten days. This O.A. was allowed and therefore, this writ petition has been filed. 2. The main reason why the petitioners did not consider the second respondent eligible to be promoted as Deputy Director was because at the time when his name was considered by the DPC in October, 1993, the second respondent's service fell short by ten days. A copy of the Recruitment Rules has been produced before us by the petitioners and for the post of Deputy Director (Administration), Column 12 is relevant and the same is extracted below: - "In case of recruitment Promotion by promotion/deputation/ (i) Inspector of Accounts transfer, grades from in All India Radio/which promotion/Doordarshan with 5 years deputation/transfer to regular service in the made. Grade. (ii) Failing (i) above, Inspector of Accounts with 8 years regular combined service in the grade of Inspector of Accounts and Senior Administrative Officer in All India Radio/Doordarshan. (iii) Failing (i) and (ii) above, Senior Administrative Officer with 8 years regular combined service in the grade of Senior Administrative Officer and Administrative Officer in All India Radio/Doordarshan. Transfer on Deputation Officer under the Central/State Governments (a) (i) Holding analogous posts; or (ii) with 5 years regular service in posts in the scale of Rs.700-1300 or equivalent (Pre-revised); or (iii) with 8 years regular service in the scale of Rs.650-1200 Pre-revised) or equivalent, and (b) having experience in administration, establishment and accounts matters. (The departmental officers in the feeder category who are in the direct line of promotion will not be eligible for consideration for appointment on deputation. Similarly, deputationists shall not be eligible for consideration for appointment by promotion. Period of deputation including period of deputation in another ex-cadre post held immediately, preceding this appointment in the same or other organisation/department of the Central Govt. shall ordinarily not exceed 3 years)." 3. Learned Additional Central Government Standing Counsel, Mr.R.Santhanam, appearing for petitioners 1 and 2 would submit that the second respondent has no right to be promoted and in fact, the Tribunal had erred in issuing directions on the basis of a mere Note. 4. Learned counsel appearing for the second respondent, on the contrary, would submit that it was purely chance that denied the second respondent the requisite experience of eight years' combined qualifying service. The second respondent was transferred to Guwahati and family circumstances prevented him from joining there. 4. Learned counsel appearing for the second respondent, on the contrary, would submit that it was purely chance that denied the second respondent the requisite experience of eight years' combined qualifying service. The second respondent was transferred to Guwahati and family circumstances prevented him from joining there. Petitioners 3 and 4, on the other hand, were posted to nearby stations where they could join immediately and therefore, it is purely because of fortuitous circumstances that petitioners 3 and 4 had completed eight years of service when the DPC prepared the seniority list, while the second respondent had not. It is also the case of the learned counsel for the second respondent that the petitioners had relaxed the Recruitment Rules in the case of some officers in the grade of Inspector of Accounts, but had taken a discriminatory attitude only with regard to the second respondent. 5. The contention as regards discrimination is stoutly denied by the petitioners. According to them, in order to remove any anomaly in the Recruitment Rules, a one-time relaxation was granted to all Inspectors of Accounts coming under Class-II, allowing them to count the service rendered by them in the cadre of Administrative Officers, and the relaxation was given uniformly to all the officers, and even thereafter, the second respondent did not have the requisite combined qualifying service as on 1.10.1993 for being appointed to the eight vacancies that were available in 1993-94. 6. The Tribunal appears to have strongly relied on the Official Memorandum dated 23.10.1989, which is extracted hereunder, so as to allow the O.A.:- "D.P.T. O.M. No.14017/82/88-EST.(RR) dated 23.10.89 Seniors completing probation also to be considered along with Juniors with requisite qualifying service. The undersigned is directed to refer to para 3-1-2 of Part III in this Department's O.M. No.AB/14017/12/87-Est.RR. dated the 18th March, 1988, wherein it was suggested that a suitable 'Note' may be inserted in the recruitment rules to the effect that seniors who have completed the probation may also be considered for promotion when their juniors who have completed the requisite service are being considered. It has been brought to the notice of this Department that in spite of the instructions referred to above, the proposed 'Note' has not been incorporated in the recruitment rules of a number of posts. It has been brought to the notice of this Department that in spite of the instructions referred to above, the proposed 'Note' has not been incorporated in the recruitment rules of a number of posts. This has let to difficulties at the time of making promotions when the seniors had either to be left out or relaxation of recruitment rules had to be resorted to on each occasion. In order to avoid a situation of this kind, it is requested that all the Ministries/Departments may kindly examine their recruitment rules and insert a 'Note' as referred to above wherever it is considered necessary." 7. Before the Tribunal, it was contended by the petitioners that at best, the communication dated 23.10.1999 is only an executive instruction and it cannot over-ride the statutory rules governing recruitment. 8. Before us, the learned counsel would submit that if one reads the Official Memorandum carefully, it could be seen that the Note referred to above was only at the proposal stage, since there were difficulties at the time of making promotions and each of the Ministries/Departments were asked to examine the Recruitment Rules and insert the note wherever it is considered necessary. Learned counsel also referred to the Official Memorandum No.AB 14017/12/97-Estt (RR) dated 24.9.1997, in which the following paragraphs are relevant: - "The question whether the benefit of shortfall in qualifying service should be applicable to promotees also was under consideration in consultation with the Union Public Service Commission. The matter has since been decided and it is clarified that the 'Note to be incorporated in the relevant Recruitment Rules/Service Rules' is for maintaining the seniority in an Organised Service/Post as far as possible. Thus, the invocation of this provision can be at the entry level or even at a higher level and would apply in cases of both direct recruits and promotees, who are included in the Eligibility List as distinct from Seniority List. It is further clarified that in its judgment of March 8, 1988 in the case of R. Prabhadevi and others vs. Union of India and others, the Supreme Court has specifically held as follows: 'Seniority in a particular cadre does not entitle a public servant for promotion to a higher post unless he fulfils the eligibility condition prescribed by the relevant rules. A person must be eligible for promotion having regard to the qualifications prescribed for the post before he can be considered for promotion. Seniority will be relevant only amongst persons eligible. Seniority cannot be substituted for eligibility nor it can over-ride it in the matter of promotion to the next higher post.' Ministry of Finance etc. are, therefore, requested to take a conscious decision to amend the relevant Recruitment Rules/Service Rules where such a provision has not been incorporated in the light of the foregoing clarification(s). This would help in the maintenance of proper cadre management and obviate the need for seeking relaxation of Recruitment Rules/Service Rules." It can be seen that even on 24.9.1997, the Ministry of Finance and other Ministries were still being requested to take conscious decisions for amending the relevant Recruitment Rules/Service Rules. 9. With regard to the question of relaxation in respect of the shortfall in the combined qualifying service, it is true, no doubt, that it was just chance or circumstances that have denied the second respondent his place in the seniority list as there was a shortfall in the second respondent's qualifying service. The fact remains that the petitioner does not possess the required number of years of qualifying service. The memorandum that is relied on is only at the stage of recommendation. Unless the Rules are amended as per the said recommendation, the petitioner's case has to be decided in accordance with the existing rules. 10. The petitioner's complaint was that the condition regarding qualifying service was relaxed in case of others, but he alone was discriminated. Mr.R.Santhanam, learned Senior Central Government Standing Counsel has produced an eligibility list of the Inspector of Accounts/Senior Administrative Officer eligible to be promoted to the post of Deputy Director (Administration) and submitted that when the respondents found that the condition pertaining to the period of qualifying service, if strictly adhered to taking into account only the period of service rendered as Senior Administrative Officers, would cause hardship. Therefore, this condition was relaxed by including the period of service rendered by the officers as Administrative Officers and even after it was so calculated that it was found that the petitioner fell short of the eight years of qualifying service by ten days. Therefore, the objection raised by the petitioner that he was discriminated against is not based on facts. 11. Therefore, the objection raised by the petitioner that he was discriminated against is not based on facts. 11. The other objection is that the Rule recommending the consideration of seniors who have completed the probation period when there were juniors who have completed the requisite service has been violated. But, that recommendation is still only at the stage of a Note or Official Memorandum and the question of giving the benefit of shortfall in qualifying service is also at the stage of recommendation, and the required amendments have not been made. In these circumstances, it is difficult to sustain the order of the Administrative Tribunal which had been passed, one on the ground that respondents 3 and 4, who have not completed eight years of qualifying service, have been considered and the petitioner alone has been discriminated, and also on the ground that the Official Memorandum issued would apply to the present case, and it is hereby set aside. 12. For the reasons stated in the earlier paragraphs, there is neither discrimination nor can the recommendation substitute an existing rule. The writ petition is, therefore, allowed and the Original Application filed by the second respondent is hereby dismissed. However, in the circumstances of the case, there will be no order as to costs. Consequently, W.M.P. No.17847 of 2000 is closed.