M. N. Chandurkar, C.J.


This is appeal by the original petitioner against the order of the ld. Single Judge dismissing his petition in which he had challenged his non-selection as Personal Assistant (Administration) which is a promotional post from the category of Superintendents.


2. The petitioner who was originally appointed as a Lower Division Clerk in the Police Department on 15th June, 1957 was promoted as Upper Division Clerk (Assistant) on 1st June, 1961. He was inducted to the Special Branch, C.I.D. as Special Branch Assistant with effect from 31st December 1970. When he was on other duty as Special Branch Assistant in the Special Branch, C.I.D., his name was considered by the State Promotion Board when a 'C'-list of Assistants fit for promotion as Superintendents was drawn. The name of the petitioner was included in the said 'C' list in 1974 and he was accordingly promoted as Superintendent in the same year by the order of the Inspector General of Police, dated 26th July, 1974.


3. The Inspecter General of Police called for recommendation for appointment by transfer as Personal Assistant (Administration) for the year 1985-86 from the cadre of Superintendents. The petitioner claimed in the petition that though he was selected and recommended by the State Promotion Board, his name was omitted from the list by the state Government on the ground that he had not put in two years of service in the category of Superintendent/Manager in the Ministerial Service employed in Police Department, though he was on deputation on other duty as Special Branch Assitant since the date of his promotion, that is, 26th July, 1974, without prejudice to his continuance as Special Branch Assistant. The petitioner claimed in the petition that though he was on other duty, having regard to r. 9(b) and r. 23(ii)(b) read with r. 36(d) and r. 4 of the Tamil Nadu State and Subordinate Service Rules (hereinafter referred as Service Rules), the service rendered by the petitioner as Special Branch Assistant should be treated as equivalent to the service rendered in the category of Superintendent in the Police Department. In his affidavit, he particularly referred to G.O.Ms, No. 1885, Home, dated 11th July, 1957 in which the same Govt. had treated service rendered as Special Branch Assistant as equivalent to that of Superintendent/Manager and by which promotions had been effected on that basis of certain Special Branch Assistants to the post of Personal Assistant (Administration) on the footing that the Special Branch Assistant had rendered qualifying service in the category of Superintendent. Thus, according to the petitioner, he had been deprived of promotion on an erroneous view of the rules.


4. The ld. Judge dimissed the petition at the admission stage, holding that, under r. 3 of the Service Rules, service of not less than two years in the category of Superintendent in the Police Department was necessary for promotion to the post of Personal Assistant (Administration) in the Tamil Nadu Police Department and that unless the Service Rules specifically provided that service as Special Branch Assistant on other duty in the Special Branch, CID, was equivalent to that of Superintendent in the Tamil Nadu Police Subordinate Service, the two posts cannot be treated as equivalent.


5. No. counter-affidavit has been filed on behalf of the respondents in this writ appeal. Consequently, the averment made by the petitioner that earlier promotions were made to the post of Personal Assistant from amongst Superintendents who were working as Special Branch Assistant, must be taken to have been not denied. But, apart from this, it appears to us that even in the light of the Service Rules, as they stand, the petitioner was entitled to be considered for promotion. At the outset, it is necessary to point out that the order promoting the petitioner as 'Superintendent' expressly states that the petitioner, who was an Assistant in the Chief Office and was on other duty as Assistant in the Special Branch, CID, was promoted as Superintendent

"without prejudice to his being on other duty as Special Branch Assistant in Special Branch CID, Madras" *


. The petitioner has been working as Superintendent right from 1974 and was so working till 1985 when the list for appointment by transfer as Personal Assistant (Administration) was drawn up for the year 1985-86. The term 'service' has been defined in the Service Rules in r. 2(18) and it reads follows :


"" Service

"means a group of persons classified by the State Government as a Subordinate or a State Service, as the case may be.Explanation :- Where the context so requires, "Service" means the period during which a person holds a post or a lien on a post or is a member of a service as above defined."


Rule 9 deals with" Members absent from duty". The relevant part of r. 9 reads as folows :


" The absence of a member of service from duty in such service, whether on leave, on foreign service or on deputation or for any other reason and whether his lien in a post borne on the cadre of such service is suspended or not, shall not, if he is otherwise fit render him ineligible in his turn


(a) for re-appointment to a substantive or officiating vacancy in the class, category, grade or post in which he may be a probationer or an aproved probationer;


(b) for promotion from a lower to a higher category in such service;"


The other relevant rule is r. 36 which deals with" Promotion" *


. The relevant part of this rule in so far as the petitioner is concerned is cl. (d) which reads as follows :


"(d) Duty in a different service counting for probation on promotion - A member of a service or a class of service promoted from one category to another shall be eligible to count for probation in the higher category his service, if any, performed otherwise than an in a substantive capacity on regular appointment to another service, State or Subordinate, in accordance with these rules and the Special Rules, if the normal method of recruitment to the latter service is according to such Special Rules by transfer from the fromer service or class thereof."


In the light of these rules, it is now necessary to refer to the relevant rule with regard to qualification for the post of Personal Assistant (Administration). Rule 3 of the special Rules of Tamil Nadu General Service, which provides for qualification, reads as follows :

"Qualification :- No person shall be eligible for appointment to this class unless he has put in a service of not less than two years in the category of Superintendent in the Police Department" *


6. It appears to be the case of the respondent - which has been accepted by the ld. Judge - that unless the petitioner had in fact worked as Superintendent, he was not entitled to be considered for the post of Personal Assistant. The view which the ld. Judge seems to have accepted is that when r. 3 (set out above) refers to a person putting in a service of not less than two years, it contemplates actual working in the office of 'Superintendent' for a period of two years. The view, it appears to us, is not borne out by the Service Rules. The definition of 'service' which we have reproduced earlier, in r. 2(18), shows that under the Explanation even though a person is on other duty and if he has a lien on his substantive post, that duty period will be treated as service in the substantive post. The Explanation specifically provides, inter alia, that service means the period during which a person holds a lien on a post. Therefore, when the petitioner was on other duty while his substantive post was that of a Superintendent and on which he had obviously a lien, he must be treated as being 'in service' as Superintendent. The General Rules clearly contemplate that merely because a person is absent from service for certain reasons, such as being on leave, or being on foreign service, or on deputation, or for any other reason, he is not rendered ineligible for promotion from a lower to a higher category of service when his turn comes. Therefore, though factually the petitioner was a member of a service as a Superintendent but was absent from that post because he was on other duty, he was not rendered ineligible for promotion from a lower to a higher category in the service. Consequently, by virtue of the fact that the petitioner was a Superintendent who was absent on duty on the ground that he was on other duty he was clearly eligible for promotion to the higher category in the post of Personal Assistant (Administration). R. 36(d) incorporates the intention of the Government to see that employees are not adversely affected if they are in a different service and they are required to complete the period of probation on promotion. The express provision in cl. (d) shows that a members of a service promoted from one category to another shall be eligible to count for probation in the higher category his service, if any, performer otherwise than in a substantive capacity on regular service, if the normal method of recruitment to the latter service is according to such Special Rules, by transfer from the former service of class thereof. The intention of the rules therefore appears to be very clear that if the State Government and the authorities require the services of a Superintendent to be deputed to work

as on other duty, his charge of promotion should not be adversely affected., Having regard to the rules referred to above, the petitioner must be treated as having put in service of not less than two years in the category of Superintendent since that is his substantive post on which he has a lien while he is deputed on other duty. The respondents are therefore clearly in error in overlooking the claims of the petitioner for promotion as Personal Assistant. The petitioner will be entitled to have his claim considered for promotion for the year 1985-86 retrospectively because he has been illegally deprived of his claim. Accordingly the order of the ld. Judge is set aside. The petitioner is entitled to a writ requiring the respondents to consider his case on merits for appointment as Personal Assistant (Administration) to the Superintendent of Police in the office of the Inspector General of Policy, Madras, in the Tamil Nadu Subordinate Service. The appeal is thus allowed. The appellant-petitioner is entitled to his costs of this appeal. Counsel's fee Rs. 500.