Judgment :- 1. The petitioner joined as Agricultural Officer through Tamil Nadu Public Service Commission on 16.07.1975. The next avenue of promotion from the post of Agricultural Officer is to the post of Assistant Director of Agriculture. The qualification for the post of Assistant Director of Agriculture is B.Sc. (Agri), pass in Account Test for Subordinate Officers Part I, pass in Account Test for Executive Officers, Department Test of Tamil Nadu Agriculture Department and District Officer manual. 2. The petitioner fulfilled all the requisite qualification. A panel of promotion was prepared for the post of Assistant Director of Agriculture on 14.02.2001, but the name of the petitioner was not included. Whereas juniors to the petitioner were included in the panel. 3. The case of the petitioner is that on enquiry, the petitioner was informed that there was a proposal to amend special rules prescribing the additional qualification, of one year Farm Service and 2 years experience on the post of Agricultural Development Officer, but it was finally not included in the rules. 4. This amendment is otherwise also immaterial in view of settled law, that the posts in existence at the time of amendment of rules are to be filled by old rules, and not new rules. 5. The case of the petitioner, therefore, is that non inclusion of the name of petitioner is totally arbitrary and discriminatory, therefore, hit by Article 14 & 16 of the Constitution of India. 6. Counter has been filed, in the counter, stand of the respondents reads as under: "9. It is submitted that the applicant has not acquired additional qualification prescribed, such as completion of one year Farm Service in G.O.Ms.No.663, Agriculture (AA1) Department, dt. 29.10.1992. Further in his letter dt. 7.9.2000, the applicant has informed that he was well aware that he should complete one year Farm Service for promotion to the post of Assistant Director of Agriculture (Extn.) and he is not willing to acquire the above additional qualification and he is responsible for not getting himself promoted. The applicant requested that he should not be posted as Farm Manager, since he is not able to serve in the Farm Service. Exemption from possessing these additional qualification have been issued to the Agricultural Officers, who have not possessed this qualification till the year 1996-97. 10. The applicant requested that he should not be posted as Farm Manager, since he is not able to serve in the Farm Service. Exemption from possessing these additional qualification have been issued to the Agricultural Officers, who have not possessed this qualification till the year 1996-97. 10. It is submitted that at the time of consideration of the panel for the years 1997-98 to 1999-2000, the Government have given exemption to 101 Officers from acquiring the additional qualification prescribed for promotion and rejected 13 other (including the applicant) names since they expressed their unwillingness to acquire the above conditions in G.O.Ms.No.285, Agriculture (AA1) Department, dt. 24.7.2000. Hence, it is submitted that the applicant himself fully known that he has to complete one year Farm Service for promotion to the post of Assistant Director of Agriculture (Extn.) and he is not willing to acquire the above additional qualification. As per G.O.Ms.No.285, Agriculture Department, dt. 24.7.2000 he is not eligible for promotion to the post of Assistant Director of Agriculture (Extn.). In view of the above position, the averments of the applicant that non-consideration of his name in the panel for the year 1999-2000 are without any basis, arbitrary is not acceptable and not sustainable. It is also submitted that the applicant himself is fully responsible for non-inclusion of his name in the 19992000 panel, due to his unwillingness to acquire the one year Farm Service. 11. It is submitted that the averment made in Para 6(3) of the application is repeated again which has no fresh valid grounds as the respondents have no malafide intention to deny his rightful promotion unless he had clear record of service at his credit. In this connection, it is submitted that promotion to the post of Assistant Director of Agriculture (Extn.) are being processed according to Special Rules for the Tamil Nadu Agricultural Extension Service. Promotion shall be made on grounds of merit and ability, seniority being considered only where merit and ability are approximately equal. The respondents cannot deny him, his rightful promotion, provided the applicant must have rendered unblemished service and must have clear record of service at his credit. But, he was having three Disciplinary cases under Rule 17(a) of the TNCS (D&A) Rules and appropriate authority's enquiry is pending on a petition received against him. The respondents cannot deny him, his rightful promotion, provided the applicant must have rendered unblemished service and must have clear record of service at his credit. But, he was having three Disciplinary cases under Rule 17(a) of the TNCS (D&A) Rules and appropriate authority's enquiry is pending on a petition received against him. After departmental enquiry, some allegations are proved, the Director of Agriculture has recommended to Government for 'DISCREET' enquiry by the Director of Vigilance and Anti-Corruption. The Government have also recommended the above issue to Director of Vigilance and Anti-Corruption to conduct the Discreet enquiry vide Govt. Lt.No.4175/AA II/2001-3, Agricultural Department, dt. 3.2.2001 and further reply awaited from Government / Director of Vigilance and Anti-Corruption. The crucial date of the panel was 1.4.99 for the panel year 1999-2000. Before that, the petitioner must have had clean records at his credit at the time of considering his name in the panel for the year 1999-2000. Moreover, he is not willing to acquire the additional qualification of one year Farm Service and his name was passed over from inclusion in the 1999-2000 panel, since he was not qualified as per the rules in force. In view of the above position, there has been no malafide intention or basis on the part of the respondents for non-inclusion of the applicant's name in the panel for the post of Assistant Director of Agriculture (Extn.) for the panel year 1999-2000. Therefore, the averment of the applicant is not acceptable, devoid of facts." 7. On consideration, I find that stand taken by the respondents cannot be sustained in law. It was not open to the respondents not to include the name of petitioner merely on proposal to amend the rules, as even if the rules were amended, still vacancies, which occurred before coming into force of amendment of rules, had to be filled up by the existing rules. As already observed, the proposal for amendment, was not implemented. 8. It is not disputed by the respondents in their counter, that the petitioner is eligible under the rules in force. 9. The second ground for not considering the case of the petitioner was that certain enquiries under Section 17(A) of the Tamil Nadu Civil Service (Discipline & Appeal) Rules, were pending. 8. It is not disputed by the respondents in their counter, that the petitioner is eligible under the rules in force. 9. The second ground for not considering the case of the petitioner was that certain enquiries under Section 17(A) of the Tamil Nadu Civil Service (Discipline & Appeal) Rules, were pending. This stand cannot be sustained in law, as according to the guidelines, issued by the State Government, in case order of punishment is stayed, then the status quo is to prevail and furthermore, instructions of Government stipulate that show cause notice under Rule 17(A) of the Tamil Nadu Civil Services (D & A) Rules, is not a bar to promotion. 10. The instructions of the State Government stipulate that the name of employee has to be included in the panel at par with his immediate junior, and in case the junior is promoted, the senior has to be promoted notionally on par with him, in that case, no arrears of pay on the basis of no work no pay is to be given, unless specific orders are issued by the Court, with regard to payment of arrears. 11. In view of the instructions of the State Government, it was not open to the respondents, to exclude the name of the petitioner for consideration for promotion, by not empanelling him along with his juniors. 12. For the reason stated herein-above, this writ petition is allowed. A writ in the nature of Mandamus is issued to the respondents, to consider the case of the petitioner for promotion to the post of Assistant Director of Agriculture, by ignoring the pending show cause notice under Section 17(A), and in case petitioner is found fit, then to grant him notional promotion. 13. In case the petitioner is found eligible for promotion, he shall also be entitled to all consequential benefits, flowing thereof. In view of the fact that the petitioner already stands retired, the respondents shall create supernumerary post for the promotion of the petitioner. No costs.