Judgment :- 1. The petitioners filed O.A.No.3393 of 2003 before the Tamil Nadu Administrative Tribunal, seeking for a direction to the respondents 1 and 2 to fix the seniority of the petitioners as comprised in the batch of direct recruits selected through the notification dated 12.09.1990 of the Tamil Nadu Public Service Commission and to assign and rank immediately above the respondents 3 to 11 in the category of Inspector of Factories. 2. Subsequent to the filing of the Original Application, the official respondents filed a reply affidavit dated 04.02.1993 together with supporting documents. However, the matter was not dealt with by the Tribunal. Subsequently, the petitioners filed W.P.No.4542 of 2005, seeking for a transfer of the OA to this Court. This Court by an order dated 14.02.2005 directed the Tribunal to transfer the said OA. On such transfer, it was re-numbered as W.P.No.21019 of 2005. 3. The writ petition was admitted on 28.06.2005. It was thereafter, respondents 12 to 16 and respondents 17 to 21 got themselves impleaded by orders 06.10.2009 and 08.10.2009 in WPMP No.725 of 2009 and WPMP Nos.731 to 735 of 2009 respectively. 4. Heard the arguments of Mr.K.Venkatramani, learned Senior Counsel representing Mr.Muthappan, counsel for the first petitioner, Mr.Vijay Narayan, learned Senior Counsel appearing for Mr.R.Parthiban for the other petitioners, Mr.P.Subramanian, learned Additional Government Pleader for respondents 1 and 2, Mr.A.L.Somayaji, learned Senior Counsel representing Mr.R.S.Pandiaraj for respondents R3 to R9 and R17 to R21, Mr.M.Ravi, learned counsel for R10, Mr.R.Muthukumarasamy, learned Senior Counsel appearing for Mr.V.Ravikumar, learned counsel for R11 and Mr.S.Vadivelu, learned counsel for R12 to R16. 5. The brief facts leading to the filing of the Original Application (transferred and converted as a writ petition) were as follows:- The post of Assistant Inspector of Factories in the second respondent department was coming under the Category No.4 under the General Branch I of Part II Section 12 of the Tamil Nadu Service Manual, 1969. The post of Inspector of Factories was included in Category No.3 under the Tamil Nadu Factory Service. As per Rule 3, the age and qualification prescribed for appointment by direct recruitment to the post of Assistant Inspector of Factories as well as the Inspector of Factories are one and the same. Under Rule 2(1) of the Special Rules (since deleted), there were two sources of recruitment to the post of Inspector of Factories. As per Rule 3, the age and qualification prescribed for appointment by direct recruitment to the post of Assistant Inspector of Factories as well as the Inspector of Factories are one and the same. Under Rule 2(1) of the Special Rules (since deleted), there were two sources of recruitment to the post of Inspector of Factories. They were direct recruitment and by promotion from among the Assistant Inspector of Factories. In view of the two feeder categories, a ratio of 1:2 was fixed for allocation of vacancies between direct recruits and promotees. 6. It is the case of the petitioners that the Tamil Nadu Public Service Commission (for short TNPSC) by a notification dated 12.09.1990 advertised for recruitment to the post of Assistant Inspector of Factories. The respondents 3 to 11 were promoted as Inspector of Factories temporarily under the provisions of Rule 39(a)(i) of the General Rules of Tamil Nadu State and Subordinate Services. These posts were filled up due to public interest since for number of years, the posts were remaining vacant. 7. When the direct recruitment posts were advertised by TNPSC on 12.09.1990, a group of Assistant Inspector of Factories including the respondents 3 to 11 filed O.A.No.3840 of 1990 before the Tribunal. Initially, the Tribunal granted an order of interim stay on 04.12.1990 restraining the TNPSC from publishing the results of the recruitment pending disposal of the OA. The Tribunal disposed of the OA finally by an order dated 22.04.1994. The Government was directed to amend the Rules before making any appointment involving application of Rules of reservation. The TNPSC was directed to await the amendments and not to proceed to prepare the panel with reference to the existing Rules. 8. Pursuant to the direction issued by the Tribunal, the number of vacancies initially advertised was reduced to six and the petitioners herein were selected against those six vacancies. The results of their recruitment was published by TNPSC on 17.02.1995. The Government approved this process and notified the selection of the petitioners by G.O.(4D) No.172 Labour and Employment dated 22.12.1995. 9. Pursuant to the direction issued by the Tribunal, the number of vacancies initially advertised was reduced to six and the petitioners herein were selected against those six vacancies. The results of their recruitment was published by TNPSC on 17.02.1995. The Government approved this process and notified the selection of the petitioners by G.O.(4D) No.172 Labour and Employment dated 22.12.1995. 9. The petitioners claim that though the notification of vacancies were done during September 1990, the process of selection ended only during December 1995 thereby, there was a considerable delay of five years resulting in undue advantage to respondents 3 to 11, who had uninterruptedly continued in the promotion posts which were not due to as per the Rules and got filled up in the absence of the direct recruits. 10. In the reply affidavit filed by the respondents 1 and 2 in the OA, in page Nos.3,4 and 5 it was stated as follows: " It is submitted that within the scheme of rule 2(c) of the Special Rules the first respondent is duty-bound to notify the vacancies reserved to be filled up by direct recruitment to the third respondent for recruitment from open quota. Accordingly the first respondent notified the following vacancies to the Tamil Nadu Public Service Commission, Madras, then and there in consonance with the method of estimation of vacancies as adumbrated in rule 4 of the General Rules for the Tamil Nadu State and Subordinate Services (herein after called the "General Rules")... It is submitted that only in respect of these 10 vacancies which are reserved to be filled up by direct recruitment, the third respondent issued a notification dated 12.09.1990 which is sought to be impugned by the applicants herein. It is submitted that pending direct recruitment through the competitive examinations which is along prelix the vacancies reserved for direct recruits were filled up temporarily by promotion as obviously the vacancies could not be left unmanned. The following among the applicants herein are such temporary promotees who are officiating in the higher posts as Inspector of Factories in the vacancies ear-marked for direct recruits. Obviously, the temporary promotees cannot be deemed as regular appointees against the vacancies of direct recruitment quota. In fact their temporary promotion as Inspectors of Factories which is governed by rule 39(a)(i) of the General Rules does not confer upon them any statutory right for being considered as regular appointees. Obviously, the temporary promotees cannot be deemed as regular appointees against the vacancies of direct recruitment quota. In fact their temporary promotion as Inspectors of Factories which is governed by rule 39(a)(i) of the General Rules does not confer upon them any statutory right for being considered as regular appointees. The only benefit that accrues to those promotees is that they have been allowed to hold the posts in the higher grade till they are replaced by the direct recruits selected through Tamil Nadu Public Service Commission, since their officiation in the vacancies in excess of their quota is merely fortuitous and pruely on an adhoc basis. Thus on an overall conspectus of the matter, the notification dated 12.09.90 advertising 10 vacancies for direct recruitment to the post of Inspectors of Factories is unassailable and it cannot be successfully impugned by the applicants under any circumstances." (Emphasis added) 11. In the counter affidavit filed in the present writ petition, the official respondents took an opposite stand to that of their earlier counter. In paragraph 11 and 13, it was observed as follows:- "11. It is submitted that in fact, the seniority of the applicants, direct recruited Inspectors of Factories has not yet been fixed and communicated due to administrative reasons. As the names of the 8 respondents herein find a place in the existing seniority list, i.e., below Thiru P.Thangamani, the applicants with presumption that their seniority will be fixed below the promotees, have filed O.A. Unless and till the seniority of the applicants is fixed by the appointing authority (Government) (1st respondent) and seniority list communicated, they cannot file an O.A. On presumptive grounds. “13. It is further submitted that the Special Rules for the Tamil Nadu Factory Service covering the post of Inspector of Factories and Assistant Inspector of Factories only the method of appointment to the post of Inspector of Factories had been stipulated and there is no provision for fixing the seniority. This would clearly mean that seniority has to be fixed only as per date of appointment." Therefore, he took exception that the Government is making contradictory stand in the counter affidavits filed in the two different proceedings. 12. This would clearly mean that seniority has to be fixed only as per date of appointment." Therefore, he took exception that the Government is making contradictory stand in the counter affidavits filed in the two different proceedings. 12. The petitioners sent a representation dated 22.07.2002 viz., after their appointment in the year 1995 (nearly after 7 years) to the State Government requesting that their seniority along with the other directly recruited candidates by the TNPSC notification dated 12.09.1990 should be fixed above the names of Thiru R.Erai Arul (R3) and below P.Thangamani in the category of Inspector of Factories. It was after sending that representation, the present OA came to be filed on 10.10.2003. 13. Mr.Vijay Narayan, learned Senior Counsel appearing for the petitioners 2 to 5 submitted that the contesting respondents cannot snatch the vacancies meant for the petitioners who had successfully stalled their appointment and the Tribunal had made them to loose five years of their service. Since under the Special Rules, Quota has been fixed by the Government including rotational rule. The Quota/Rota rule should be strictly followed. The petitioners should not be prejudiced by the Court orders. They are entitled to seek restoration of their seniority on the basis of the notification. 14. Mr.K.Venkatramani, learned Senior Counsel appearing for the first petitioner adopted the same arguments. 15. Mr.A.L.Somayaji, learned Senior Counsel appearing for respondents R3 to R9 and R17 to R21 contended that by G.O.Ms.No.27 Labour and Employment Department dated 03.03.1998, the rules relating to ratio of 1:2 between direct recruits and the promotees were deleted. Altogether the method of making direct recruitment to the post of Inspector of Factories stood cancelled. The petitioners were only last batch of direct recruits and therefore, the question of rendering any direction for future may not arise. But So far as the petitioners are concerned, they were appointed as direct recruit Inspectors of Factories vide G.O(4D)No.172 Labour and Employment Department, dated 22.12.1995. They also joined duty immediately thereafter. Their services were also recognized by G.O(D)No.525 Labour and Employment Department dated 25.06.1999. 16. The learned Senior Counsel also submitted that R3 to R9 were promoted from the post of Assistant Inspector of Factories and that of Inspector of Factories in the year 1989 whereas the TNPSC had called for applications for direct recruitment only by a notification dated 12.09.1990. Their services were also recognized by G.O(D)No.525 Labour and Employment Department dated 25.06.1999. 16. The learned Senior Counsel also submitted that R3 to R9 were promoted from the post of Assistant Inspector of Factories and that of Inspector of Factories in the year 1989 whereas the TNPSC had called for applications for direct recruitment only by a notification dated 12.09.1990. From the year 1969 to 1991, there were 60 promotees and 5 direct recruits. He also submitted that the Quota/Rota rule has broken down and therefore, the petitioners cannot seek for retrospective fixation of their seniority. Since the contesting respondents have promoted to the higher post even before the notification, they cannot brought down to a lower seniority. He also submitted that the seniority in the lower post cannot be counted for the seniority in an higher post. In support of his submission, he produced a copy of the Government Gazette of Tamil Nadu dated 17.10.1990, wherein the following notification was published. "LABOUR AND EMPLOYMENT DEPARTMENT [G.O.(2D)No.28 Labour and Employment, 25th September 1990] No.I/LE/756/90 – The following Assistant Inspectors of Factories are promoted and appointed as Inspectors of Factories in the Tamil Nadu Factory Service. 1. Thiru B.Sundaram 2. Thiru K.Chidambaranathan 3. Thiru G.Muralidharan 4. Thiru B.Durariraj 5. Thiru R.Jayakumar" The respondents notwithstanding the quota for direct recruits were promoted against regular vacancies and they had also completed their probation in the higher post. It cannot be said that they were holding the post under fortitous circumstances or that they were holding the posts in adhoc capacity. 17. In any event, he submitted that there was an inordinate delay for the petitioners in moving the Tribunal in the matter of seniority. In matters of seniority, such inordinate delay cannot be condoned. The petitioners never explained as to why they chose to move the Court after a period of 7 years. The petitioners were given appointment order and their probations were also declared by the Government order only from the date of the order and they never questioned the fixation of their dates of entry. Hence, on grounds of laches, their petitions are liable to be rejected. 18. Mr.R.Muthukumarasamy, learned Senior Counsel appearing for R11 contended that since the OA filed by the promotees were pending before the Tribunal, the petitioners could not have been appointed and Section 19(4) of the Administrative Tribunals Act will apply. Hence, on grounds of laches, their petitions are liable to be rejected. 18. Mr.R.Muthukumarasamy, learned Senior Counsel appearing for R11 contended that since the OA filed by the promotees were pending before the Tribunal, the petitioners could not have been appointed and Section 19(4) of the Administrative Tribunals Act will apply. In such circumstances, the Government could not have promoted them during the pendency of the OA. He also submitted that even their initial promotion though on temporary basis but against permanent posts. The petitioners never questioned their appointment from a prospective date. The petitioners cannot get seniority on a date in which they were never in service. 19. Mr.S.Vadivelu learned counsel for the impleaded respondents R12 to R16 stated that the present issue has nothing to do with the question of their seniority. The service rendered by the respondents even in temporary capacity will accrue to their benefit by virtue of Rule 35(aa) of the General Rules. For the purpose of fixation of seniority, only the dates of entry into service materialise. 20. Mr.M.Ravi, learned counsel appearing for the 10th respondent stated that there cannot be any restrospective seniority for a government servant on a date he was never in service. He also submitted only after submitting their representation dated 22.07.2002, they had filed the OA. The representation sent was not considered by the State Government in view of the pendency of the OA. 21. Mr.Vijay Narayan, learned Senior Counsel placed reliance upon various judgments of the Supreme Court in support of the proposition that the Quota/Rota fixed as per the recruitment rules will have to be strictly followed. The adhoc appointees cannot claim any seniority over direct recruits contrary to the rules. The judgments which have relevance to the case on hand are referred to, which are as follows: 21.1. The Supreme Court in A.R. Sircar (Dr) v. State of U.P and others reported in1993 Supp (2) SCC 734 held that those who are instrumental in seeking interim order from the High Court staying the implementation of the select list cannot be allowed to take advantage of their own wrong.He relied upon the following passage found in paragraph 6 which is as follows:- "6. The decision of the High Court is primarily based on the proviso to Rule 20(1) extracted earlier which clearly states that if the appointment order specifies a particular back date with effect from which a person is substantively appointed, that date will be the date of his substantive appointment, otherwise the relevant date will be the date of the order of appointment. The order of October 31, 1989 which has been reproduced in the judgment of the High Court does not specify any back date and, therefore, ordinarily the appellant’s appointment would be taken as from the date of issuance of the order. But the order clearly states that the appointment is on the basis of selection by direct recruitment. It may be mentioned that in the counter-affidavit filed on behalf of the State Government it has been clarified in paragraph 3(k) that the direct recruitment was for the vacancy of 1982-83 but on account of a clerical omission this fact was not mentioned in the appointment order. This statement clarifies that although the appointment was made on October 31, 1989, it related to the vacancy of 1982-83. That is even otherwise obvious from the fact that the advertisement issued in December 1984 was for filling up the vacancy of the year 1982-83 by direct recruitment. There can, therefore, be no doubt whatsoever that the appointment of the appellant was for the vacancy of 1982-83. Had it not been for the intervening stay order granted by the High Court in Writ Petition No. 1545 of 1986, the appellant would have been appointed long before the regularisation of promotion of respondents 4 and 5 under the 1988 Rules. Respondents 4 and 5 who were instrumental in seeking the interim order from the High Court staying the implementation of the select list cannot be allowed to take advantage of their own wrong. The dismissal of their petition on July, 24, 1989 goes to show that they had successfully blocked the regular entry of the appellant on a substantive vacancy of the year 1982-83 by filing an untenable writ petition. The interim order passed by the High Court kept the appellant out from securing a regular appointment on a substantive vacancy and in the meantime respondents 4 and 5 by virtue of the 1988 Rules secured regularisation of their ad hoc appointments as Professors of Medicine. The interim order passed by the High Court kept the appellant out from securing a regular appointment on a substantive vacancy and in the meantime respondents 4 and 5 by virtue of the 1988 Rules secured regularisation of their ad hoc appointments as Professors of Medicine. It is, therefore, obvious that on the one hand they precluded the appellant from occupying the substantive vacancy of the year 1982-83 and on the other they got their ad hoc appointments regularised under the 1988 Rules. If the intervening stay order had not prevented the appellant’s appointment to the substantive vacancy, there can be no doubt that the appellant would have occupied that post earlier in point of time if Dr Aggarwal was not prepared to join. In that case the appellant would have been senior to respondents 4 and 5." (Emphasis added) As can be seen from the above passage, in the very same case, it was also noted that the writ petition filed by the promotees were dismissed by the Court and therefore, no advantage could have been taken on such interim order. But in the present case, the Tribunal has given direction to amend the Rules and it cannot be said that they have lost the OA before the Tribunal. 21.2. For the very same proposition, the learned counsel also brought to the notice of this Court the recent judgment of the Supreme Court in Amarjeet Singh and Others v. Devi Ratan and others reported in (2010) 1 SCC 417 , wherein it was stated that a party whose writ petition is dismissed cannot take advantage of its own wrong and the act of court shall prejudice no one. The maxim thus applicable is an undeserved benefit taken by a party under an interim order has to be neutralised. 21.3. The second judgment over which reliance was placed upon was State of W.B. v. Aghore Nath Dey reported in (1993) 3 SCC 371 . Reliance was placed upon Paragraph 22 of the judgment which is as follows:- "22. There can be no doubt that these two conclusions have to be read harmoniously, and conclusion (B) cannot cover cases which are expressly excluded by conclusion (A). We may, therefore, first refer to conclusion (A). Reliance was placed upon Paragraph 22 of the judgment which is as follows:- "22. There can be no doubt that these two conclusions have to be read harmoniously, and conclusion (B) cannot cover cases which are expressly excluded by conclusion (A). We may, therefore, first refer to conclusion (A). It is clear from conclusion (A) that to enable seniority to be counted from the date of initial appointment and not according to the date of confirmation, the incumbent of the post has to be initially appointed ‘according to rules’. The corollary set out in conclusion (A), then is, that ‘where the initial appointment is only ad hoc and not according to rules and made as a stopgap arrangement, the officiation in such posts cannot be taken into account for considering the seniority’. Thus, the corollary in conclusion (A) expressly excludes the category of cases where the initial appointment is only ad hoc and not according to rules, being made only as a stopgap arrangement. The case of the writ petitioners squarely falls within this corollary in conclusion (A), which says that the officiation in such posts cannot be taken into account for counting the seniority." 21.4. The learned counsel also referred to the judgment of the Supreme Court in Keshav Chandra Joshi v. Union of India reported in 1992 Supp (1) SCC 272. Reliance was placed upon paragraphs 19 to 23 which is as follows:- "19. The heart of the controversy lies in the question as to when a person is appointed to a post in the service in a substantive capacity within the meaning of Rule 3(h) read with Rules 5 and 24 of the Rules. Under Rule 5 read with Rule 3(h) a member of the service means a person, be it direct recruit under Rule 5(a) or promotee under Rule 5 (b), appointed in a substantive capacity to the service as per the provisions of the rules. In order to become a member of the service he/they must satisfy two conditions, namely, the appointment must be in substantive capacity and the appointment has to be to the post in the service according to rules and within the quota to a substantive vacancy. There exists marked distinction between appointment in a substantive capacity and appointment to the substantive post. There exists marked distinction between appointment in a substantive capacity and appointment to the substantive post. Therefore, the membership to the service must be preceded by an order of appointment to the post validly made by the Governor. Then only he/they become member/members of the service. Any other construction would be violation of the Rules. 20. The narrative of facts and attendant circumstances would indicate that the Government at no point of time abandoned direct recruitment under Rule 5(a), nor omitted to fix inter se seniority. No blame in this regard should lie at the doors of the government as due to recourse to judicial process this situation crept up. It is not the case of the promotees that Government held out any promise that the promotees would be regularised from the respective dates of promotion. On the other hand the government’s positive act of adjusting the promotees in excess of the quota under Rule 6 in the vacancies that arose in the succeeding years belie such a situation. 21. From the above background two questions would emerge: (i) as to when promotees become members of the cadre of Assistant Conservators in a substantive capacity in accordance with the rules, and (ii) whether the entire length of service from the date of initial appointments should be counted towards their seniority. The prerequisite of the right to inclusion in a common list of seniority is that all those who claim that right must broadly bear the same characteristics. Fortuitous circumstances of their holding the grade post carrying the same designation or scale of pay or discharging the same duty would not justify the conclusion that they belong to the same cadre. Due to exigencies of service temporary promotions against substantive vacancies were made. It is undoubted that preceding their promotion, an ad hoc committee had considered the cases of the promotees. Admittedly seniority subject to rejection of unfit was the criteria, followed in the selection. The selection was, therefore, in defiance of and de hors Rule 5 (b) read with Appendix ‘B’. 22. In a democracy governed by rule of law, it is necessary for the appropriate governance of the country that the political executive should have the support of an efficient bureaucracy. Our Constitution enjoins upon the executive and charges the legislature to lay down the policy of administration in the light of the directive principles. 22. In a democracy governed by rule of law, it is necessary for the appropriate governance of the country that the political executive should have the support of an efficient bureaucracy. Our Constitution enjoins upon the executive and charges the legislature to lay down the policy of administration in the light of the directive principles. The executive should implement them to establish the contemplated egalitarian social order envisaged in the preamble of the Constitution. 23. It is seen that the appointments of the promotees were made in batches year wise. The rule postulates that appointment shall be strictly as per merit after interview arranged in order by the Public Service Commission. In the same year when the appointments are made to the substantive vacancies from both the sources, the promotees shall rank senior to the direct recruits in accordance with the quota prescribed under Rule 6. The rules provide the power to appoint Forest Rangers from Subordinate Service, due to administrative exigencies to officiate or to act temporarily as Assistant Conservators of Forest. The rule itself, thus, recognises the distinction between substantive appointment and temporary/officiating appointment. The procedure to prepare the list to man the officiating or temporary vacancies is on the basis of seniority subject to rejection of the unfit. The question of considering relative merit and ability of the promotees inter se, then would not arise. Thereby, it is clear that the list prepared by the Chief Conservator of Forest for appointment of the Forest Rangers to officiate in the posts of Assistant Conservator of Forest on ad hoc or temporary basis is only fortuitous due to non-availability of the direct recruits as stop gap arrangement. Employees appointed purely on ad hoc or officiating basis due to administrative exigencies, even though continued for a long spell, do not become the members of the service unless the Governor appoints them in accordance with the rules and so they are not entitled to count the entire length of their continuous officiating or fortuitous service towards their seniority." (Emphasis added) 21.5. The learned Senior Counsel also referred to the judgment of the Supreme Court inSuraj Parkash Gupta v. State of J&K reported in (2000) 7 SCC 561 . In that case after taking exception to the Government showing undue sympathy for the promotees and also finding fault with the promotees illegally occupying the quota meant for direct recruits. The learned Senior Counsel also referred to the judgment of the Supreme Court inSuraj Parkash Gupta v. State of J&K reported in (2000) 7 SCC 561 . In that case after taking exception to the Government showing undue sympathy for the promotees and also finding fault with the promotees illegally occupying the quota meant for direct recruits. In Paragraph 36, it was observed as follows: "36. On the question of breakdown of quota rule, except the lethargy of the State Government and its inaction and its not asking the Service Commission to make direct recruitment, no other cause is visible. The Cabinet note only stated that because the reference to PSC would take a long time, the ad hoc services of the promotees were to be regularised. The delay on the part of the Government appears to us to be motivated for the purpose of blocking the quota of the direct recruits and giving a part of it to the promotees. We have noticed that when a very belated decision was taken to make direct recruitment, the same was restricted to 10% rather than to the statutory quota of 20%. This attitude on the part of the State was not reasonable." (Emphasis added) 21.6. The learned counsel further placed reliance upon the judgment of the Supreme Court in K. Madalaimuthu v. State of T.N reported in (2006) 6 SCC 558, wherein the Supreme Court dealt with the very same temporary rules framed by the Tamil Nadu Government and held that temporary service cannot be counted for seniority. 22. In opposition to these line of rulings, the contesting respondents relied upon the judgment of the Supreme Court in Direct Recruit Class II Engineering Officers Assn. v. State of Maharashtra reported in (1990) 2 SCC 715 for the purpose of contending that in case the quota rule is not followed continuously for a number of years because it was impossible to do so the inference irresistible is that the quota rule had broken down. It was also contended that where the quota rule had broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date. Reliance was placed upon paragraph 47 of the judgment in which the summary of the judgment was dealt with and it is as below: "47. To sum up, we hold that: (A) Once an incumbent is appointed to a post according to rule, his seniority has to be counted from the date of his appointment and not according to the date of his confirmation. The corollary of the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account for considering the seniority. (B) If the initial appointment is not made by following the procedure laid down by the rules but the appointee continues in the post uninterruptedly till the regularisation of his service in accordance with the rules, the period of officiating service will be counted. (C) When appointments are made from more than one source, it is permissible to fix the ratio for recruitment from the different sources, and if rules are framed in this regard they must ordinarily be followed strictly. (D) If it becomes impossible to adhere to the existing quota rule, it should be substituted by an appropriate rule to meet the needs of the situation. In case, however, the quota rule is not followed continuously for a number of years because it was impossible to do so the inference is irresistible that the quota rule had broken down. (E) Where the quota rule has broken down and the appointments are made from one source in excess of the quota, but are made after following the procedure prescribed by the rules for the appointment, the appointees should not be pushed down below the appointees from the other source inducted in the service at a later date. (F) Where the rules permit the authorities to relax the provisions relating to the quota, ordinarily a presumption should be raised that there was such relaxation when there is a deviation from the quota rule. (G) The quota for recruitment from the different sources may be prescribed by executive instructions, if the rules are silent on the subject. (H) If the quota rule is prescribed by an executive instruction, and is not followed continuously for a number of years, the inference is that the executive instruction has ceased to remain operative. (G) The quota for recruitment from the different sources may be prescribed by executive instructions, if the rules are silent on the subject. (H) If the quota rule is prescribed by an executive instruction, and is not followed continuously for a number of years, the inference is that the executive instruction has ceased to remain operative. (I) The posts held by the permanent Deputy Engineers as well as the officiating Deputy Engineers under the State of Maharashtra belonged to the single cadre of Deputy Engineers. (J) The decision dealing with important questions concerning a particular service given after careful consideration should be respected rather than scrutinised for finding out any possible error. It is not in the interest of Service to unsettle a settled position. With respect to Writ Petition No. 1327 of 1982, we further hold: (K) That a dispute raised by an application under Article 32 of the Constitution must be held to be barred by principles of res judicata including the rule of constructive res judicata if the same has been earlier decided by a competent court by a judgment which became final. 23. The learned counsel also placed reliance upon a judgment of the Supreme Court in State of J&K v. Javed Iqbal Balwan reported in (2009) 4 SCC 529 . Reliance was placed upon paragraph 42, wherein Suraj Parkash Guptas case (cited supra) was referred to. It was held that direct recruits cannot claim appointment from the date of vacancy in quota before their selection. Paragraph 42 of the judgment may be usefully extracted below: "42. The impugned directions of the High Court are clearly contrary to the decision of this Court in a case coming from Jammu and Kashmir itself in Suraj Parkash Gupta v. State of J&K. We find that among the large number of decisions referred by it, the decision in Suraj Parkash Gupta was also noticed by the High Court, at more than one place, in its judgment coming under appeal but the High Court referred to and relied upon the decision on the issue of regularisation of service of the departmental promotees on the post of Tahsildar in the State Revenue (Gazetted) Service. Strangely the High Court completely overlooked the decision on the point of antedating the seniority of the direct recruits." 24. Strangely the High Court completely overlooked the decision on the point of antedating the seniority of the direct recruits." 24. On the question of delay in approaching the Court, reliance was placed upon the judgment of the Supreme Court in G.C. Gupta v. N.K. Pandey reported in (1988) 1 SCC 316 . Reliance was placed upon paragraph 17, which is as follows; "17. In view of these considerations, I agree with my learned brother Ray, J. that Respondents 1-12 were disentitled to any relief under Article 226 of the Constitution due to inordinate delay and laches. If the judgment of the High Court were to be sustained after a lapse of nearly 32 years, it cannot be gainsaid that the entire structure of the administrative set-up of the U.P. Service of Engineers, Buildings and Roads Branch would be upset. We are informed that the four appellants before us by reason of their seniority and record of service, have reached the higher echelons of service. One of them has been the Offg. Engineer-in-Chief i.e. Head of the Public Works Department, Buildings and Roads Branch, and the remaining three are Offg. Chief Engineers. As against this, eleven of the 12 respondents have since retired, leaving only one of them. It is always open to the State Government to reconsider the case of the remaining respondent in the light of the principles settled by this judgment that the temporary Assistant Engineers on absorption were entitled to the benefit of their seniority from the date from which their services were regularised i.e. the date from which they became “Members of the Service” within the meaning of Rule 3(b) of the Rules. It is still open to the Government to grant him the necessary relief, if he is found suitable for promotion to a higher post, without disturbing the appointment, promotion and confirmation of the appellants, by the creation of a supernumerary post." 25. Further reliance was placed upon the judgment of the Supreme Court in U.P. Secretariat U.D.A. Assn. v. State of U.P., reported in (1999) 1 SCC 278 for the very same purpose. 26. Mr.Vadivelu, learned counsel for the R12 to R16 also referred to the judgment of the Supreme Court in Jagdish Ch. Further reliance was placed upon the judgment of the Supreme Court in U.P. Secretariat U.D.A. Assn. v. State of U.P., reported in (1999) 1 SCC 278 for the very same purpose. 26. Mr.Vadivelu, learned counsel for the R12 to R16 also referred to the judgment of the Supreme Court in Jagdish Ch. Patnaik v. State of Orissa reported in (1998) 4 SCC 456 for the purpose of contending that the recruitment and appointment are different issues and there cannot be any recruitment unless there is an appointment and it is the date of appointment which is crucial for determining the seniority. 27. Mr.M.Ravi learned counsel for the contesting respondent also placed reliance upon a judgment of the Supreme Court in JT 2007 SC 284 wherein, it was held that there cannot be retrospective effect given to an order of appointment under the Rules. Such contentions are not reasonable in normal parlance thus stating Jagdish Ch.Patnaik case (cited supra) was also approved. 28. Since the promotees went to the Tribunal earlier and the petitioner could not get the benefit of the appointment, the Government chose to wait ostensibly because of the pendency of the OA before the Tribunal in the earlier occasion. May be the Government was under the impression Section 19(4) of the Administrative Tribunal Act will come in the way of their granting any appointment order. 29. As to the effect of Section 19(4) over the pending proceedings, the Supreme Court reasonably had the occasion to consider the same in Union of India and others v. Dipak Mali reported in 2010 AIR SCW 158. In paragraph 8, the following query was raised. "8. On behalf of the respondents, it was urged that Section 19(4) of the Administrative Tribunals Act, 1985, did not contemplate stay but abatement of proceedings before other authorities once an application was admitted by the Central Administrative Tribunal. By virtue of sub-section (4) of Section 19, on admission of such application proceedings pending before other Courts and Forums would abate unless otherwise directed by the Tribunal." In answer to the said query is found in paragraph 11 which is as follows: "11. The case sought to be made out on behalf of the petitioner, Union of India as to the cause of delay in reviewing the Respondents case, is not very convincing. The case sought to be made out on behalf of the petitioner, Union of India as to the cause of delay in reviewing the Respondents case, is not very convincing. Section 19 (4) of the Administrative Tribunals Act, 1985, speaks of abatement of proceedings once an original application under the said Act was admitted." 30. The contention that there was contradiction in the stand of the Government in the reply affidavits filed before the Tribunal in the O.A.No.3840/90 and the present affidavit is no doubt true. The Government should have been careful in filing such affidavit. They cannot be allowed to take such contradictory stand depending upon the side for which they want to lend their support. 31. The Supreme Court observed that such affidavits are unworthy of the spokesman of the Government and shows utter disregard for veracity. It is necessary to refer to the judgment of the Supreme Court in B. Prabhakar Rao v. State of A.P. Reported in1985 Supp SCC 432. The following passage found in paragraph 12 at page 450 may be usefully extracted below:- "It is amazing that the same Deputy Secretary to the Government, representing the same Government, should have sworn to two such contradictory affidavits. It reveals a total sense of irresponsibility and an utter disregard for veracity. It shows that the deponent had signed the affidavits without even reading them or that he signed them to suit the defence to the particular writ petition without any regard for truth. In either case, it is reprehensible and totally unworthy of the spokesman of a Government and most unflattering to the Government on whose behalf he spoke. We would have contemplated severe action against the deponent, had we not the feeling that the responsibility for his statements lies with undisclosed higher echelons and we need not make a scapegoat of him. In fact, in a case like this involving the entire body of government servants in Andhra Pradesh, we would have expected the Chief Secretary or a Principal Secretary to file the counter. But they have chosen to keep themselves back." Therefore, the Government should adhere to the warning issued by the Supreme Court without inviting further action from this Court for the grievous lapses made by them. 32. In the present case, the petitioners were appointed only during the year 1995 and their appointment were regularised only after two years. But they have chosen to keep themselves back." Therefore, the Government should adhere to the warning issued by the Supreme Court without inviting further action from this Court for the grievous lapses made by them. 32. In the present case, the petitioners were appointed only during the year 1995 and their appointment were regularised only after two years. They have not chosen to question their prospective appointment but by sending a representation after 7 years and seek for fixation of seniority on a date even before the notification issued by TNPSC, cannot be countenanced by this Court. It is unnecessary to go into the question of breakdown of Quota/Rota rule. The petitioners category is a vanishing type in the second respondent department since the source of entry for direct recruits have been dispensed with by the amendment made vide G.O.Ms.No.63 Labour and Employment Department dated 17.05.1996. In any event, the petitioners cannot seek to place their names in the seniority list on dates when they were never even in the Governments service. The petitioners were also guilty of serious delay and it is not open to this Court to condone such delay and put the clock backwards at this point of time. 33. Very recently, the judgment of the Supreme Court in Union of India and others Vs. M.K.Sarkar reported in 2010 2 SCC 59 will apply. In paragraphs 14 to 16, the Supreme Court observed as follows: "14. The order of the Tribunal allowing the first application of respondent without examining the merits, and directing the appellants to consider his representation has given rise to unnecessary litigation and avoidable complications. The ill-effects of such directions have been considered by this Court in C.Jacob V. Director of Geology and Mining:(SCC pp.122-23, para 9) "9. The courts/tribunals proceed on the assumption, that every citizen deserves a reply to his representation. Secondly, they assume that a mere direction to consider and dispose of the representation does not involve any decision on rights and obligations of parties. Little do they realise the consequences of such a direction to consider. If the representation is considered and accepted, the ex-employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to consider. Little do they realise the consequences of such a direction to consider. If the representation is considered and accepted, the ex-employee gets a relief, which he would not have got on account of the long delay, all by reason of the direction to consider. If the representation is considered and rejected, the ex-employee files an application/writ petition, not with reference to the original cause of action of 1982, but by treating the rejection of the representation given in 2000, as the cause of action. A prayer is made for quashing the rejection of representation and for grant of the relief claimed in the representation. The tribunals/High Courts routinely entertain such applications/petitions ignoring the huge delay preceding the representation, and proceed to examine the claim on merits and grant relief. In this manner, the bar of limitation or the laches gets obliterated or ignored." 15. When a belated representation in regard to a "stale" or "dead" issue/dispute is considered and decided, in compliance with a direction by the court/tribunal to do so, the date of such decision cannot be considered as furnishing a fresh cause of action for reviving the "dead" issue or time-barred dispute. The issue of limitation or delay and laches should be considered with reference to the original cause of action and not with reference to the date on which an order is passed in compliance with a courts direction. Neither a courts direction to consider a representation issued without examining the merits, nor a decision given in compliance with such direction, will extend the limitation, or erase the delay and laches. 16. A court or tribunal, before directing "consideration" of a claim or representation should examine whether the claim or representation is with reference to a "live" issue or whether it is with reference to a "dead" or "stale" issue. If it is with reference to a "dead" or "stale" issue or dispute, the court/tribunal should put an end to the matter and should not direct consideration or reconsideration. If the court or tribunal deciding to direct "consideration" without itself examining the merits, it should make it clear that such consideration will be without prejudice to any contention relating to limitation or delay and laches. Even if the court does not expressly say so, that would be the legal position and effect." 34. In the light of the above, the writ petition will stand dismissed. No costs. Even if the court does not expressly say so, that would be the legal position and effect." 34. In the light of the above, the writ petition will stand dismissed. No costs. (Emphasis added)