Judgment :- 1. Petitioner has challenged the seniority of respondents 3 to 5, by claiming to be senior to the private respondents, having been appointed by way of direct recruitment, on 15.05.1987. 2. The petitioner was recruited as Divisional Fire Officer in accordance with Tamilnadu State and Subordinate Service Rules, and duty on 15.05.1984, at State Training School, Madras. The petitioner successfully completed his probation on 14.05.1989. 3. The Post of Divisional Fire Officer in category -II, in class 2 of the Tamilnadu Fire Service is filled up by more than one method of recruitment, namely by direct recruitment and recruitment by transfer of the Asst. Divisional Fire Officer. 4. According to rules, the ratio between the direct recruitment and recruitment by transfer is 1:2. 5. The case of the petitioner is that there has been no violation of quota rule, for the year 1983-84. The estimated vacancies for the post of Divisional Fire Officer was 2 for direct recruitment and 4 by way of transfer. The respondents 2 to 5 were appointed on the different dates as Divisional Fire Officer, initially temporarily under Rule 10(a)(1) of the General Rules of Tamil Nadu State Sub-ordinate Service Rules, 1984. 6. Rule 10(a) (1) reads as under: "10. Temporary appointments:- a(1) (1) where it is necessary in the public interest owing to an emergency which has arisen to fill immediately a vacancy in post borne on the cadre of a service, class or category and there would be undue delay in making such appointment in accordance with these rules and the Special Rules, the appointing authority may temporarily appoint a person, who possesses the qualifications prescribed for the post otherwise than in accordance with the said rules. #(Added vide G.O.Ms.No.21, P&AR (S) Dept., 23-1-96 w.e.f 23-1-96) Provided that no appointment @ by direct recruitment under this clause shall be made of any person other than the one sponsored by the Tamil Nadu Public Service Commission from its regular or reserve list of successful candidates to any of the posts within the purview of the Tamil Nadu Public Service Commission. @ (Added vide G.O. Ms./No.21, P&AR (S) Dept., 23-1-96 w.e.f 23-1-96) Omitted; (Provided further that appointment by direct recruitment under this clause (1) in respect of posts within the purview of Tamilnadu Public Service Commission shall be made, only where new posts with new quallifications are created temporarily and where the Tamil Nadu Public Service Commission does not have a regular or reserve list of successful candidates for sponsoring. It is not disputed that the respondents 2 to 5 were temporarily appointed prior to induction of petitioner in service. The respondents 2 to 5 were inducted into regular service on 03.11.1989 and 07.06.88, by giving them the date of probation as the date of their initial appointment. 7. The Petitioner, being aggrieved by fixation of seniority of respondents 2 to 5 over and above him, filed representation with the respondent. The representation filed by the petitioner stands decided vide impugned order dated 09.03.2000, which reads as under: HOME (POL XVII) DEPARTMENT SECRETARIAT, CHENNAI-9 Letter No.100356/Pol.17/98-13, dated 9.3.2000 From Tmt. SANTHA SHEEL NAIR, I.A.S., Secretary to Government To The Director of Fire Service Chennai-600 008 Dear Sir, Sub: Fire Service Department – Thiru R.Balsami, Divisional Fire Officer – Fixation of inter-se-Seniority in the Cadre of Divisional Fire Officer – Requested - Reg Ref: i) From Thiru R.Balsami, Divisional Fire Officer, Representation ` dated:22.10.98 ii) Your Letter Rc.No.16407/B2/98 dated 26.03.99 I am directed to refer to the letters cited. 2. I am to state that, the Government have examined the request of Thiru R.Balsami, directly recruited Divisional Fire Officer to fix his inter-se-seniority with reference to the substantive vacancy for which the recruitment were done. The estimate of vacancy for the post of Divisional Fire Officer for the year 1983-84 have been assessed as two for direct recruitment and four for recruitment by transfer. Thiru R.Balsami has been selected against estimate of vacancies arrived at for direct recruitment and Tvl.M.Noorudeen, K.Shivashanmugam, N.Velayutham Pillai and D.Devendran were appointed as Divisional Fire Officer by recruitment by transfer against the estimate of vacancies arrived at for recruitment by transfer for the year 1983-84. According to rule 35(aa) of the General Rule for the Tamil Nadu State and Subordinate Services, the seniority of a person in a service, class or category or grade shall, where the normal method of recruitment to that service, class category or grade is by more than one method of recruitment. According to rule 35(aa) of the General Rule for the Tamil Nadu State and Subordinate Services, the seniority of a person in a service, class or category or grade shall, where the normal method of recruitment to that service, class category or grade is by more than one method of recruitment. Unless, the individual has been reduced to a lower rank as a punishment, be determined with reference to the date on which he is appointed to the services, class category or grade. Thiru R.Balsami joined the service as Divisional Fire Officer on 15.5.87. Whereas Tvl.M.Noorudeen, K.Sivashanmugam, N.Velayudham Pillai and D.Devendran appointed as Divisional Fire Officers to fix his seniority with the promotees taking into account the substantive vacancy that existence during the year 1983-84 cannot be complied with. The individual may be informed accordingly." 8. Learned Senior counsel for the petitioner challenged the impugned order, by contending that the order is on the face of it arbitrary, being out come of misinterpretation of rules. 9. Learned Senior counsel for the petitioner referred to rule 10(a) (1) reproduced above, to contend that person appointed temporarily cannot be treated to be an employee in the cadre and therefore no benefit of the service rendered on temporary basis can be granted, u/s. 10(a)(1) of the General rules, and that Rule 35(aa) is subject to rule 23(a) (1) of the rules 10. Therefore Rule 35(aa) on which reliance has been placed by the 1st respondent to decide the representation, has no application, in view of Rule 23(a) of the Tamil Nadu State Subordinate Service Rules. 11. Therefore Rule 35(aa) on which reliance has been placed by the 1st respondent to decide the representation, has no application, in view of Rule 23(a) of the Tamil Nadu State Subordinate Service Rules. 11. Rule 35(aa) and Rule 23(a) is reproduced below for ready reference: 35(aa) The seniority of a person in service, class, category or grade shall, where the normal method of recruitment to that service, class, category or grade is by more than one method of recruitment, unless the individual has been reduced to a lower rank as a punishment, be determined with reference to the date on which he is appointed to the services, class, category or grade; Provided that where the junior appointed by a particular method or recruitment happens to be appointed to a service, class, category or grade, earlier than the senior appointed by the same method of recruitment, the senior shall be deemed to have been appointed to the service, class, category or grade on the same day on which the junior was so appointed: Provided further that the benefit of the above proviso shall be available to the senior only for the purpose of fixing inter-se-seniority: Provided also that where persons appointed by more than one method of recruitment are appointed or deemed to have been appointed to the service, class, category or grade on the same day, their inter-se-seniority shall be decided with reference to their age." 23(a) (i) Date of commencement of probation of persons first appointed temporarily – If a person appointed temporarily either under sub-rule (a) or sub-rule(b) of the rule 10 to fill a vacancy in any service, class or category otherwise than in accordance with the rules governing appointment thereto, such vacancy being a vacancy which may be filled by direct recruitment, is subsequently appointed to the service, class or category in accordance with the rules, he shall commence his probation if any., in such category either from the date of his first temporary appointment or from such subsequent date, as the appointing authority may determine. If the post is one to which appointment may be made by transfer, and the person who had been appointed there to either under General Rule 10(a) or 10(d) is subsequently recruited thereto by transfer and included in the list of approved candidates, the appointing authority may, in his discretion, allow such person to commence his probation if any, from the date of his first temporary appointment or from such subsequent date, as the appointing authority may determine. Proviso to Rule 23(a) (i): The date so determined by the appointing authority to commence probation in this clause, shall not be earlier than the date of commencement of probation of the junior most person already in service." 12. The contention of the learned senior counsel for the petitioner is that in view of proviso, the date of commencement of probation could not be fixed earlier than 15.05.1987, as the petitioner, on appointment, had commenced his probation in the year 1987 itself. 13. It is also contention of the learned senior counsel for the petitioner that respondent nos.2 to 5 could not be placed seniors by applying Rule 35 (aa) of the General Rules, by giving them date of probation before respondents became members of service. 14. On consideration, I find no force in the contention raised by the learned senior counsel for the petitioner. Rule 23(a) (i), on which reliance has been placed by the learned senior counsel, gives absolute discretion to the State Government to fix the date of probation from the date of his first temporary appointment or from subsequent date. 15. The proviso to Rule only fixes restriction that date of commencement of probation cannot be earlier than that of the commencement of the probation to the junior most person in service. The reading of Rule 23 (a) (i) shows that probation in regard to temporary appointment under Rule 10 is regulated only in case where a person is appointed on temporary basis against the vacancy of direct recruit, and not in a case where person is appointed against vacancy fixed for the promotee / transferee. 16. This is not a case that respondents were appointed against vacancy reserved for direct recruits, or that that they were given appointment for want of availability of direct recruits and subsequently, appointed to service. 17. 16. This is not a case that respondents were appointed against vacancy reserved for direct recruits, or that that they were given appointment for want of availability of direct recruits and subsequently, appointed to service. 17. The facts of the case show that the date of probation given to respondents is not prior to junior most person in the cadre, as on the date of appointment, the petitioner was not in the cadre to claim that the date of probation could not be given prior to the date of his appointment, as the appointment was not against vacancy of direct recruit. 18. No merits. Dismissed. No costs.