Judgment :- (Prayer in W.P.No.7718 of 1998 The writ petition is for the issuance of a writ of certiorarified mandamus to call for the records connected with the impugned circular dated 3/6/1998, ref.No.E3/misc/201/97 on the file of the respondent and quash the same and consequently direct the respondent to assess merit of the eligible candidates for promotion to the post of Assistant Managers only on the basis of the confidential reports and the service record available with the respondent. Prayer in W.P.No.8983 of 1998 The writ petition is for the issuance of a writ of certiorarified mandamus calling for the records relating to the impugned proceedings of the first respondent in No.E3/Misc/201/97 dated 17/6/1998, quash the same and direct the first respondent to promote the petitioner as Assistant Manager with retrospective benefits based on the petitioner's past service. Prayer in W.P.No.8984 of 1998 The writ petition is for the issuance of a writ of certiorari calling for the records relating to the impugned circular issued by the first respondent in No.E3/Misc/201/97 dated 3/6/1998 and to quash the same.) COMMON ORDER In these three writ petitions, the challenge is to a circular dated 3/6/1998 of the first respondent and the promotion order dated 17/6/1998, issued to respondents 2 to 5 in W.P.Nos.8983 and 8984 of 1998. The writ petitions are disposed of by the common order for the sake of convenience and the parties are referred to as the petitioner and respondents 2 to 5. 2. By the impugned circular dated 3/6/1998, the first respondent while referring to Rule 3.12 of the Service Rules of the State Industries Promotion Corporation of Tamil Nadu Limited, which mentions that the basic criteria for promotion will be merit and seniority will be taken into consideration only when merit is approximately equal, proposed to conduct a written test followed by an interview by constituting a committee for that purpose. Pursuant to the said circular dated 3/6/1998, the petitioner along with 13 other Assistant Officers is stated to have attended a written test on 9/6/1998 and also the interview held on 10/6/1998. There were only five vacancies to which respondents 2 to 5, came to be ultimately promoted as Assistant Managers by the other impugned order dated 17/6/1998. 3. Pursuant to the said circular dated 3/6/1998, the petitioner along with 13 other Assistant Officers is stated to have attended a written test on 9/6/1998 and also the interview held on 10/6/1998. There were only five vacancies to which respondents 2 to 5, came to be ultimately promoted as Assistant Managers by the other impugned order dated 17/6/1998. 3. Assailing the said orders, Mr.Selvaraj, learned counsel appearing for the petitioners would contend that Rule 3.12 of the Service Rules of the State Industries Promotion Corporation of Tamil Nadu Limited, does not provide for the holding of a written test and therefore, the action of the first respondent in prescribing a written test that too for the promotion to the post of Assistant Manager and Junior Manager alone in the year 1998 was illegal and therefore, the circular dated 3/6/1998 and the consequent promotion made on that basis on 17/6/1998 should be held to be invalid. 4. The learned counsel would contend that the said step taken by the first respondent for holding a written test was with a view to deprive the petitioner of his promotion, in as much as, there was a grouse against the petitioner which was revealed when one of the Assistant General Managers by name Thiru.N.Marichamy once called the petitioner to his chambers and asked him whether he sent any anonymous communication to the Government? According to the learned counsel, as such a cloud was prevailing as against the petitioner, he was transferred from Head Office, Chennai to the Project Office at Ranipet on 28/4/1998 and therefore, the whole attempt of the first respondent in holding the test for promotion from the post of Assistant Officer to Assistant Manager under the impugned proceedings was resorted to, to deprive the petitioner his lawful rights to be promoted as Assistant Manager. 5. In this context, the learned counsel also contended that while there were very many posts between Assistant Manager to General Manager, for which a promotion can be resorted to from the 'immediate' lower category while for all other posts, promotions were being made by assessing the merit based on the past record of service, for the first time, the impugned circular came to be issued on 3/6/1998 for the post of Assistant Manager alone, which according to the learned counsel was mala fide made to deprive the petitioner of his lawful rights. 6. 6. On the other hand, the above submissions of the learned counsel for the petitioner were resisted by the first respondent and a counter affidavit has been filed on behalf of the first respondent, wherein the allegations of malafide referred to in paragraphs 4 to 6 have been refuted by the first respondent. According to the first respondent, the transfer of the petitioner in April 1998 was on administrative grounds and not as alleged by the petitioner. The allegation contained in paragraph 5 referring to Thiru.N.Marichamy, Assistant General Manager is also specifically denied. 7. The learned counsel for the first respondent also contended that there was nothing wrong in assessing the merit of the Assistant Officers by holding a written test and on that ground, it cannot be held that there was any violation of the Service Rules of the State Industries Promotion Corporation of Tamil Nadu Limited. 8. Having heard the learned counsel for the petitioners and on a perusal of the respective affidavits and counter affidavits filed in this Court, as well as from the Service Rules of the State Industries Promotion Corporation of Tamil Nadu Limited, I am of the view that no fault can be found with the impugned circular dated 3/6/1998 in prescribing a written test and interview for assessing the merits of the concerned Assistant Officers who aspired for the post of Assistant Managers. Rule 3.12 of the Service Rules of the first respondent Corporation reads as under. "3.12 Promotions The basic criteria for promotion will be merit and seniority being taken into consideration only when merit is approximately equal. The guidelines issued by the Government in this regard should be observed." 9. It is a common ground that for the post of Assistant Managers, the first respondent can resort to either promotion from the next lower category or for special reasons by transfer or promotion from any other class or deputation. In the case of promotion from the next lower post or category, the concerned Officer in that lower post or category should have three years of service. As far as the required experience is concerned, there is no dispute in regard to the case of the petitioner or respondents 2 to 5. As far as the question as to the prescription of written test is concerned, I find that the first respondent constituted a committee consisting of 1. The Chairman, SIPCOT 2. As far as the required experience is concerned, there is no dispute in regard to the case of the petitioner or respondents 2 to 5. As far as the question as to the prescription of written test is concerned, I find that the first respondent constituted a committee consisting of 1. The Chairman, SIPCOT 2. The Managing Director, SIPCOT 3. The Additional Director, Finance (BPE) Dept. 4. The Additional Director, Industries and Commerce for considering the promotion to the post of Assistant Managers. 10. The petitioner admittedly participated in the promotion process of written test as well as the interview held on 9/6/1998 and 10/6/1998 respectively. A perusal of the affidavit does not disclose that there was any allegation of malpractice in the matter of holding of the written test or the interview. The only other allegation is the one made in paragraphs 4, 5 and 6, wherein it is contended that a doubt was raised by one of the Assistant General Manager, as to whether the petitioner wrote any anonymous letter to the State Government. 11. When the procedure adopted by the first respondent in holding the written statement is analysed in the above stated background, I am of the view that the holding of the written test by itself by constituting a committee for that purpose, cannot be held to be violative of Rule 3.12 of the Service Rules of the State Industries Promotion Corporation of Tamil Nadu Limited. Under the said Rule, it is specifically held that the basic criteria of promotion will be on merit and seniority will be considered when merit is approximately equal. It also stated that the Government has not issued any guidelines as contemplated under Rule 3.12 of the State Industries Promotion Corporation of Tamil Nadu Limited. Admittedly, no guideline was issued by the Government even at the relevant point of time. Therefore, if merit of a candidate is to be decided, it will have to be held that holding of a written test will definitely enable the concerned authorities to make a better assessment of the individual merits of the candidates for the purpose of promotion. At best, it can only be held that holding of such a written test was by way of supplementing the rule prescribed for promotion under Rule 3.12. At best, it can only be held that holding of such a written test was by way of supplementing the rule prescribed for promotion under Rule 3.12. It is well known that a statutory provision cannot be modified or amended by executive instructions but a valid rule having some Lacuna of gap can be supplemented by executive instructions. Such instructions can only supplement and not supplant the Rule. In the decision reported in 1989 4 SCC - 318, (SENIOR SUPERINTENDENT OF POST OFFICES, ALLAHABAD AND OTHERS Vs. IZHAR HUSSAIN), the Supreme Court has held in para 6 as follows:- "6. Shri Anil Dev Singh, appearing for the Union of India, contended that the Government of India has issued instructions dated July 11, 1955 and February 8, 1956 which lay down that the retirement under Rule 2 (2) of the Pension Rules should be effected when such retirement is necessary in public interest. The instructions being supplementary to the rule, according to him, the order of retirement has to be in 'Public Interest' and as such there is no vice of arbitrariness in the rule. We do not agree with this contention of the learned counsel. A statutory rule cannot be modified or amended by executive instructions. A valid rule having some lacuna of gap can be supplemented by the executive instructions, but a statutory rule which is constitutionally invalid cannot be validated with the support of executive instructions. The instructions can only supplement and not supplant the rule." 12. In the judgment reported in "J & K PUBLIC SERVICE COMMISSION AND OTHERS Vs. Dr. NARINDER MOHAND AND OTHERS ( 1994 2 SCC 630 )" it has been held in para 7 as follows. "7. ..... The executive power could be exercised only to fill in the gaps but the instructions cannot and should not supplant the law, but only supplement the law. ......" Therefore, that can never be held to be in violation of the said Rule which admittedly provides for selection while making the promotion. Therefore, by no stretch of imagination holding of a written test was in violation of the Rule in order to hold that the impugned Circular dated 3/6/1998 prescribing a written test and constitution of a committee for that purpose to be in derogation of the Rules. The committee consisted of a Chairman, the Managing Director and two other additional Directors. Therefore, by no stretch of imagination holding of a written test was in violation of the Rule in order to hold that the impugned Circular dated 3/6/1998 prescribing a written test and constitution of a committee for that purpose to be in derogation of the Rules. The committee consisted of a Chairman, the Managing Director and two other additional Directors. Therefore, in the absence of any other specific allegation of malafides against those officers, it would be travesty of justice to hold that the constitution of such a committee was detrimental to the interest of the petitioner. The allegation contended in paragraphs 4, 5 and 6 of the affidavit, in my opinion, cannot be held to be sufficient enough to conclude mala fides as against the first respondent Corporation in order to interfere with the issuance of the impugned circular dated 3/6/1998 and the proceedings 17/6/1998. Looked at from any angle, I am not able to subscribe to the contentions raised on behalf of the petitioners while attacking the impugned circular dated 3/6/1998. The petitioner having participated in the selection made based on the circular dated 3/6/1998, it is not open to the petitioner to challenge the same. 13. In a decision reported in 1986 Supp SCC - 285 OM PRAKASH SHUKLA Vs. AKHILESH KUMAR SHUKLA AND OTHERS, it is held in para 24 as follows: "24. Moreover, this is a case where the petitioner in the writ petition should not have been granted any relief. He had appeared for the examination without protest. He filed the petition only after he had perhaps realised that he would not succeed in the examination. The High Court itself has observed that the setting aside of the results of examinations held in the other districts would cause hardship to the candidates who had appeared there. The same yardstick should have been applied to the candidates in the district of Kanpur also. They were not responsible for the conduct of the examination." 14. In the decision reported in 2002 2 SCC - 712 G.N.NAYAK Vs. GOA UNIVERSITY AND OTHERS, wherein it is held in para 22 as follows:- "22. According to respondent 5, the amendment of the qualifications for the post of Professor of Marine Science was illegal. They were not responsible for the conduct of the examination." 14. In the decision reported in 2002 2 SCC - 712 G.N.NAYAK Vs. GOA UNIVERSITY AND OTHERS, wherein it is held in para 22 as follows:- "22. According to respondent 5, the amendment of the qualifications for the post of Professor of Marine Science was illegal. It was contended that under Statute 8, it is the Executive Council which has to be prescribe the qualifications after considering the recommendations of the Academic Council. According to respondent 5, the qualifications which were prescribed in the 1995 advertisement and handout issued to the applicants in connection therewith had not been prescribed by the Executive Council nor recommended by the Academic Council. Whether this is so or not, this is not a grievance which could have been raised by respondent 5. He knew that there was a change in the eligibility criteria for the post yet he applied for the post and appeared at the interview without protest. He cannot be allowed to now contend that the eligibility criteria were wrongly framed." 15. In the decision reported in (2002) 6 Supreme Court Cases 127 (CHANDRA PRAKASH TIWARI AND OTHERS Vs. SHAKUNTALA SHUKLA AND OTHERS), it is held in paras 32 and 34 are as follows:- "32. ..... It is to be noticed at this juncture that while the doctrine of estoppel by conduct may not have any application but that does not bar a contention as regards the right to challenge an appointment upon due participation at the interview/selection. It is a remedy which stands barred and it is in this perspective in Om Prakash Shukla vS. Akhilesh Kumar Shukla, a three-Judge Bench of this Court laid down in no uncertain terms that when a candidate appears at the examination without protest and subsequently found to be not successful in the examination, question of entertaining a petition challenging the said examination would not arise. 33. ......... 34. Akhilesh Kumar Shukla, a three-Judge Bench of this Court laid down in no uncertain terms that when a candidate appears at the examination without protest and subsequently found to be not successful in the examination, question of entertaining a petition challenging the said examination would not arise. 33. ......... 34. There is thus no doubt that while question of any estoppel by conduct would not arise in the contextual facts but the law seems to be well settled that in the event a candidate appears at the interview and participates therein, only because the result of the interview is not "palatable" to him, he cannot turn round and subsequently contend that the process of interview was unfair or there was some lacuna in the process." Therefore, even on this ground, the challenge made by the petitioner, cannot be accepted. 17. One other subsequent development pointed out by the petitioner is that by the proceedings of the Board dated 12/9/1993, the Board has now resolved to withdraw the prescription of written test approved by the Board earlier on 27/5/1998 to assess the merit of the internal candidates for promotion up to the level of Assistant Manager in the administration wing. 18. The learned counsel for the petitioner contended that since the first respondent itself has now thought it fit to do away with the process of holding written test up to the level of Assistant Manager, it should be held that such a procedure adopted in the past period was not valid in law. I am afraid that merely because subsequent to 2003, the first respondent decided to withdraw the holding of the written test upto the level of Assistant Manager, it can be held that the holding of the written test for assessing the merit as per the impugned circular dated 3/6/1998 was invalid. 19. For the reasons mentioned in the above paragraphs, I am of the confirmed view that the holding of the written test would be the best course for assessing the merit of any suitable candidate for the purpose of promotion by way of selection. Therefore, merely based on the subsequent development pointed out by the petitioner, there is no scope to hold that the earlier impugned circular dated 3/6/1998 and order dated 17/6/1998 would become invalid. 20. Therefore, merely based on the subsequent development pointed out by the petitioner, there is no scope to hold that the earlier impugned circular dated 3/6/1998 and order dated 17/6/1998 would become invalid. 20. Lastly it was contended that in view of the subsequent policy of the first respondent Corporation for not holding the written statement for promotion up to the level of Assistant Managers, the petitioners claim at least in the future vacancies should be considered favourably and in such an event, his promotion should date back from the year 1998. However, forceful the contention of the petitioner may be, in as much as, it is for the first respondent Corporation to consider such a claim of the petitioner, I do not find any scope to issue any specific directions to that effect in this writ petition. I leave it entirely to the first respondent Corporation to consider the said claim of the petitioner while considering the petitioner's promotion to the post of Assistant Manager in the future vacancies. 21. For all the above reasons, the writ petitions fail and the same are dismissed. No costs.