JUDGMENT : R.Subramanian, J. Aggrieved by the order of the learned Single Judge dated 30.08.2013 made in WP No.19439 of 2005, in and by which, the learned Single Judge while quashing the proceedings of the Secretary to Government, Rural Development (Special Panchayat) Department dated 23.12.2004, bearing letter No.41089/Se.Vu(pa)/2004-I confirming the orders of the District Collector, Tirunelveli, dated 13.10.2003 bearing Na.Ka.No.2161/03/P2, directed the respondents to promote the petitioner as a Junior Assistant/Bill Collector by transfer of service, as per G.O.Ms.No.150 dated 19.08.1998 and the Government letter No.37790/TP.2/98-2 dated 22.03.1999, the respondents in the Writ Petition are before us by way of this intra Court Appeal. 2. The petitioner was appointed through a Selection process by inviting names from the District Employment Exchange, Tirunelveli, as a Sanitary Worker in Royagiri Town Panchayat, on 28.09.1994 and was subsequently promoted as Sanitary Supervisor on 24.07.1996. The Government, finding that after the provincialisation of the posts of Junior Assistant, Typist, Steno Typist as well as Bill Collector, these employees who were working in the lower cadre posts of record clerk, office assistant, sanitary worker, sanitary supervisor, watchman and persons employed in the drinking water schemes had been denied of promotional avenues passed various Government Orders commencing from G.O.Ms.No.963, Rural Development Department dated 23.11.1990, to provide for transferring the qualified persons working in the lower grades mentioned above to the provincialised services, subject to they having the required qualification. The said G.O.Ms.No.963 dated 23.11.1990 provided for transfer of the lower cadre employees to the provincialised services to an extent of 10% of the total number of vacancies. The percentage was subsequently increased to 20% under G.O.Ms.No.43, Personal and Administrative Reforms Department, dated 16.02.1994. 3. The aforesaid two Government Orders restricted the transfer of service only from the post of Record Clerk. By G.O.Ms.No.150, Municipal Administration and Water Supply Department (PR II) dated 19.08.1998, the Government extended the benefits of transfer of service to other lower grade employees like Office Assistants. The said Government Order also prescribed certain conditions for promotion by transfer of service. A Committee consisting of the District Collector, Zonal Assistant Director of Panchayats, and Personal Assistant to District Collector (Panchayat Development) as members who formed to identify such candidates who could be promoted by transfer of service. The Committee was also required to get the approval of the Tamil Nadu Public Service Commission, before effecting the promotions. 4. A Committee consisting of the District Collector, Zonal Assistant Director of Panchayats, and Personal Assistant to District Collector (Panchayat Development) as members who formed to identify such candidates who could be promoted by transfer of service. The Committee was also required to get the approval of the Tamil Nadu Public Service Commission, before effecting the promotions. 4. After issuance of G.O.Ms.No.150 dated 19.08.1998, several Panchayats Employees Associations sought for various clarifications. The Government by its letter No.37790/TP.2/1998-2 dated 22.03.1999 issued certain clarifications. One of the clarification that was sought for was, what are the lower grade of posts to which G.O.No.150 would apply. The answer to this question was that it would apply to Record Clerks, Junior Assistants, Sanitary Supervisors, Sanitary Workers, Workers under Drinking Water Schemes and Watchman. One other question that was raised was as to the order in which the seniority amongst the employees working in various cadres is to be determined. The clarification issued by the Government was that while determining seniority, the employees should be categorized according to the post held by them, as far as the employees working in posts with equal pay, seniority should be determined on the date of their first joining in the service. 5. Upon issuance of the Government order and clarificatory letter, cited supra, the petitioner had made a representation to the respondents seeking promotion. By a reply dated 13.10.2003, he was informed that he is placed at Serial No.49 and total number of vacancies is only 15, so he would be promoted when his turn came as per the seniority. The Secretary to Government, Rural Development Department also confirmed the conclusions of the Collector by letter dated 23.12.2004. Challenging the said rejection, the petitioner has come forward with the above Writ Petition seeking the prayer as aforesaid. 6. During the pendency of the Writ Petition, the Committee constituted under G.O.Ms.No.150 appears to have met on 30.11.2006 and had forwarded the list of about 13 employees by transfer of promotion to the provincialised categories. Challenging the said rejection, the petitioner has come forward with the above Writ Petition seeking the prayer as aforesaid. 6. During the pendency of the Writ Petition, the Committee constituted under G.O.Ms.No.150 appears to have met on 30.11.2006 and had forwarded the list of about 13 employees by transfer of promotion to the provincialised categories. The said recommendations were returned by the Director of Panchayats on 04.03.2007 with a direction that the lower cadre employees must be categorised on the basis of the posts held by them in the following order: (1) Record Clerk (2) Sanitary Supervisor (3) Office Assistant, Sanitary Worker and other lower cadre employees The said letter dated 04.03.2007 also makes it clear that seniority in each post should be determined on the basis of the date of joining in the said post. Thereafter, the committee again met on 29.10.2007 and made a recommendation for transferring by promotion nearly 14 employees and the name of the petitioner figured as serial no.14 in the said list sent by the Collector of Tirunelveli to the Director of Panchayats on 05.11.2007. It is not known, as to whether the said list was approved by the Director of Panchayats or not. However, on 03.07.2009, the Committee led by the District Collector sent another recommendation for promoting by transfer about 17 employees and the petitioner's name did not figure in the said list of 17 employees. The reason that is now sought to be given is that the list of 17 employees sent along with letter dated 30.07.2009 bearing Na. Ka.2840/2007/P2, was prepared based on the date of joining irrespective of the post held. 7. In the Writ Petition, before the learned Single Judge, the counter affidavit was filed by the District Collector, Tirunelveli, wherein, it is claimed that the petitioner's name was at serial no.49 in the seniority list, which was published on 23.11.1999 and the petitioner, however, made a false claim that his name should be in serial no.12 and the same was rejected. Since, there was a Government ban in force, no new appointments were made by transfer or promotion to the provincialised services. The clarificatory letter was relied upon to project as if the direction of the Government was that the seniority should be determined irrespective of the post held taking into account the date of joining into service only. 8. Since, there was a Government ban in force, no new appointments were made by transfer or promotion to the provincialised services. The clarificatory letter was relied upon to project as if the direction of the Government was that the seniority should be determined irrespective of the post held taking into account the date of joining into service only. 8. In fact during the pendency of the Writ Petition, an affidavit was filed by the Director of Panchayats on 19.08.2013, wherein, it was stated as follows: “4. I submit that the following are the rules applicable while considering the appointment of Junior Assistants as per 3 (g) of the Tamil Nadu Ministerial Service Rules: (a) The Tamil Nadu Town Panchayats Establishment Rules 1988 and (b) The Tamil Nadu Town Panchayat Establishment (Qualification and Recruitment of Office assistant) Rules 1988 under Chapter II of (a) above. 5. I submit that by virtue of the above rules, the petitioner is also eligible for the post of Junior Assistant/Bill Collector by transfer of service in terms of both the GO and the aforementioned rules. 6. I submit that a proposal in this regard shall also be prepared and further action shall be taken as expeditiously as possible in this regard, but not later than two months. 7. I submit that I have high regard for this Hon'ble Court and ensure that the aforementioned rules and GO are strictly complied with. Under the circumstances, I humbly pray that this Hon'ble Court may be pleased to grant two months time in the manner as stated and thus render justice.” Recording the said affidavit, the learned Single Judge allowed the Writ Petition, directing the appellant herein, to promote the respondent with effect from 01.11.2007 without back wages. The learned Single Judge, however, directed that the notional service rendered from 01.11.2007 till the date of actual promotion shall be counted only for other monetary benefits and for the purpose of fixing his future salary. 9. When this appeal was taken up we had posed the question to the learned Additional Advocate General, as to how, this appeal could be entertained inasmuch as the affidavit filed by the Director of Panchayats would show that the Government has practically conceded to the claim of the respondent. Additional Secretary to Government, Mrs.K.G.Vimala, had filed an affidavit before us setting out the circumstances under which the affidavit came to be filed. Additional Secretary to Government, Mrs.K.G.Vimala, had filed an affidavit before us setting out the circumstances under which the affidavit came to be filed. We therefore heard the matter on merits. 10. Mr.P.H.Aravind Pandian, learned Additional Advocate General, appearing for the appellants would submit that seniority of the lower grade employees was to be determined based on their date of joining in the service de hors the posts held by them. If the date of joining in service is taken into account, the respondent being junior to other employees would not come within the zone of consideration for promotion by transfer of service. According to him, the first list of eligible persons to be promoted was prepared by the Committee constituted under G.O.No.150 on 30.11.2006 consisting of 13 persons. Admittedly, the said list was prepared based on the date of joining alone without considering the posts occupied by the employees. The said list was returned by the Director of Panchayats, on 04.03.2007 indicating that as per the Government letter No.37790/TP.2/98-2 dated 22.03.1999, while determining the seniority of the employees for the purposes of promotion by transfer, they should be categorised based on the posts held by them. The said letter reads as follows: IN OTHER LANGUAGE 11. Based on this letter dated 04.03.2007, the Committee headed by the District Collector had prepared a second list on 29.10.2007, which was forwarded to the Director of Panchayats on 05.11.2007. Admittedly, the respondent's name figures in serial no.14 in the said list. Even when the list dated 05.11.2007 was pending with the Director of Town Panchayats, the Committee headed by the District Collector, Tirunelveli, sent another list on 30.07.2009 in which the seniority of the employees was based on the date of joining in the service. It is not known as to what prompted the Committee to send a second list, when the first list dated 05.11.2007 was pending with the Director of Town Panchayats. On 24.10.2009, the Director of Town Panchayats had returned the list dated 30.07.2009 bearing RC.No.2840/07/Pa2 pointing out certain deficiencies. None of the 8 deficiencies deal with the question of determination of seniority, there is nothing in the proceedings of the Director of Town Panchayats dated 24.10.2009 regarding the basis on which, the seniority of the employees in the lower cadre post is to be determined. None of the 8 deficiencies deal with the question of determination of seniority, there is nothing in the proceedings of the Director of Town Panchayats dated 24.10.2009 regarding the basis on which, the seniority of the employees in the lower cadre post is to be determined. There is nothing on record to show that the list dated 05.11.2007, which is based on the cadre wise seniority has been returned by the Director of Town Panchayats. After the list dated 30.07.2009, which was prepared on the basis of the seniority calculated from the date of joining into service de hors the cadre post was returned by the Director of Town Panchayats, the Committee headed by the District Collector had sent another proposal on 30.12.2009 recommending promotions for 17 employees based on the date of joining without any reference to the cadre wise seniority. 12. The affidavit filed by the Additional Secretary to Government in this Writ Appeal would proceed on the basis that the proposals dated 05.11.2007 was returned by the Director of Town Panchayats on 24.10.2009. This statement is factually incorrect. A perusal of the proceedings dated 24.10.2009 would show that what was returned the list dated 30.07.2009 and not the list dated 05.11.2007. The affidavit also states that the return by the Director of Town Panchayats on 24.10.2009 is on the ground that it contains only the list of persons, who had worked as Record Clerks and Sanitary Supervisors and not others. This is also factually incorrect. In the proceedings of the Director of Town Panchayats dated 24.10.2009 bearing RC. No.14674/2009/A2, there is no reference to the posts held by the recommendees. The defects pointed out in the said letter are as follows: IN OTHER LANGUAGE 13. These contradictions in the stand of the Government would show that the impact of G.O.Ms.No.150 dated 19.08.1998 and the clarificatory letter dated 22.03.1999 have not been properly understood by the officials, who had dealt with the question of promotion. In paragraph 16 of the affidavit dated 11.06.2018 filed by the Additional Secretary to Government, it is stated that the respondent has been placed at serial No.22 in the present panel, since the present panel consisted of all lower category personnel and the said panel had been based on initial entry into Town Panchayat Service. 14. In paragraph 16 of the affidavit dated 11.06.2018 filed by the Additional Secretary to Government, it is stated that the respondent has been placed at serial No.22 in the present panel, since the present panel consisted of all lower category personnel and the said panel had been based on initial entry into Town Panchayat Service. 14. The learned Additional Advocate General would submit that G.O.Ms.No.150, as it stands does not indicate as to the basis on which, the seniority amongst the lower cadre employees is to be determined. According to him, the seniority amongst the lower cadre employees has to be determined only on the basis of their initial date of joining in the services of the panchayat irrespective of the post to which they were appointed. 15. Contending contra Mr.G.Sankaran, learned counsel appearing for the respondent would submit that it was because of the absence of clarity in G.O.Ms.No.150, the clarifications were issued by the Government in Government letter dated 22.03.1999, wherein, it is made clear that the seniority should be determined on the basis of the post held by each employee and the seniority amongst those in the same scale of pay should be determined on the basis of date of joining into the service. Mr.Sankaran, would also draw our attention to the letter dated 04.03.2007 by the Director of Town Panchayats, wherein, it has the manner in which the seniority is to be determined has been indicated. We have already extracted the contents of the letter dated 04.03.2007. 16. The essential question that arises is as to the manner in which the seniority of the lower cadre employees is to be categorized while considering their claim for promotion. 17. The Government Order in G.O.Ms.No.150 provides for an opportunity to the qualified lower cadre employees in the Panchayat service to be transferred by promotion to the provincialised services of the State with the approval of the TNPSC. The said G.O. does not list out all the lower cadre employees, it only mentions all lower cadre posts like Record Clerks, Office Assistants etc. The clarification issued by the Government vide letter No.37790/TP.2/98-2 makes it clear that the lower cadre employees mentioned in G.O.Ms.No.150 dated 19.08.1998 would include Record Clerk, Office Assistant, Sanitary Supervisor, Sanitary Workers, Workers under the Drinking Water Scheme and Watchman. The clarification issued by the Government vide letter No.37790/TP.2/98-2 makes it clear that the lower cadre employees mentioned in G.O.Ms.No.150 dated 19.08.1998 would include Record Clerk, Office Assistant, Sanitary Supervisor, Sanitary Workers, Workers under the Drinking Water Scheme and Watchman. While setting out the guideline for determining the seniority amongst these employees the clarifications issued by the Government in the above letter dated 22.03.1999 reads as follows: IN OTHER LANGUAGE 18. This clarification is in two parts. The first part deals with cadre wise seniority and the second part deals with seniority amongst persons who drawing same scale of pay. It is an admitted case of the parties that the posts of Record Clerks and Sanitary Supervisors have a higher scale of pay than the other posts. Therefore, while determining seniority on the basis of the posts held the persons working in the posts with higher scale of pay must be placed first [1] This is clear from the second part of the clarification to the effect that seniority of persons working in the posts bearing the same scale of pay should be determined on the basis of their date of joining in the service. This intention of the Government is also echoed in the proceedings of the Director of Panchayats dated 04.03.2007, wherein, the clarifications issued under the letter dated 22.03.1999 were reiterated. 19. The affidavit filed by the Under Secretary to Government ignores this distinction and proceeds on the footing that the seniority of the employees working in the lower cadre posts must be based only on their date of joining in the panchayat service ignoring the posts occupied by them. It is because of this wrong notion, the respondent has been denied promotion despite he having been found entitled to promotion as early as on 05.11.2007. The first list prepared on 05.12.2006 by the Committee was based on date of joining in the service. The same was admittedly returned by the Director on 04.03.2007, thereafter on 05.11.2007, the Committee had forwarded the list prepared based on cadre wise seniority, that list was neither returned nor approved. However, on 30.07.2009, the Committee chose to send another list prepared on the basis of date of joining and that list was also returned on 24.10.2009. The same was admittedly returned by the Director on 04.03.2007, thereafter on 05.11.2007, the Committee had forwarded the list prepared based on cadre wise seniority, that list was neither returned nor approved. However, on 30.07.2009, the Committee chose to send another list prepared on the basis of date of joining and that list was also returned on 24.10.2009. Thereafter, the 4th list appears to have been sent on 30.12.2009 based on the date of joining de hors the post to which the person was appointed. 20. Mr.P.H.Aravind Pandian, Additional Advocate General, would however contend that the Special Rules framed for Panchayat services would apply and hence the respondent cannot claim cadre wise seniority. The Special Rules that were framed in G.O.Ms.No.205 dated 23.03.1989 has been placed before us. A careful perusal of the Rules does not contain any provision as to the basis on which, the seniority is to be determined in the event of promotion by transfer of service. Mr.P.H.Aravind Pandian, would attempt to justify the stand of the Government by relying upon G.O.Ms.No.43 dated 15.02.1994, the said G.O. only provides for promotion by transfer of service from persons working in the lower cadre in the panchayats to the provincialised services of the Government to an extent of 20%. There is nothing in the said G.O. regarding the basis on which the seniority is to be reckoned. 21. It is also pointed out that the Director of Town Panchayats has withdrawn the Government Clarification dated 22.03.1999 and the instructions given by him in proceedings in RC No.21700/2006/A2 dated 04.03.2007 on 14.08.2013. It should be immediately pointed out that the Director of Town Panchayats has exceeded his power in issuing the proceeding in RC No.21700/2006/A2 dated 14.08.2013. The clarifications dated 22.03.1999 were issued by the Government and the Director has no power to withdraw the clarification issued by the Government and we find that this has been done during the pendency of the Writ Petition, after the Director was required to file an affidavit by this Court. This action of the Director to say the least is nothing, but an attempt to wriggle out of the situation created by the wrong interpretation of the Government order and the clarification issued by the Government. We also see it as an attempt to browbeat this Court 22. This action of the Director to say the least is nothing, but an attempt to wriggle out of the situation created by the wrong interpretation of the Government order and the clarification issued by the Government. We also see it as an attempt to browbeat this Court 22. We are therefore of the considered view that this proceeding issued by the Director in RC 21700/2006/A2 dated 14.08.2013 are incompetent. We therefore find that as per the clarifications issued by the Government in its letter dated 22.03.1999, the proper procedure for determination of seniority for the purposes of promotion by transfer of service from among the lower cadre employees working in the Panchayat Service should be based on the cadre wise seniority and not the general seniority (based on date of joining into service). If the cadre wise seniority is adopted it is conceded that the respondent would be entitled to promotion as directed by the learned Single Judge. We should also place on record that after the disposal of the Writ Petition by the learned Single Judge on 30.08.2013, the Director of Town Panchayats had forwarded the proposal for promoting the respondent with effect from 01.11.2007 on 17.02.2014. The proposals have also been approved by the Government as well as the Tamil Nadu Public Service Commission. 23. The approval granted by the Government in G.O.Ms.No.14 dated 23.01.2015 is stated to be subject to the result of the Appeal. Now that we have considered the matter on merits and concluded that de hors the affidavit filed by the Director before the learned Single Judge, the seniority must have been determined on the basis of the post held by the individual and not on the basis of the date of joining irrespective of the post held and upheld the order of the learned Single Judge. The approval granted by the Government on 23.01.2015 will operate de hors the restrictions namely “subject to the result of the Appeal”. 24. In fine the Writ Appeal is dismissed confirming the order of the learned Single Judge. However, in view of the fact that the respondent has been promoted pending this appeal there will be no order as to costs in this appeal. Consequently, the connected miscellaneous petition is closed.