retrospective effect from 19.05.2008, but even this order has not been notified in the Government gazzette. While so, the government issued G.O. Ms. No.461 dated 10.06.2009 for fixation of seniority of Sub-Inspector of Police recruited from Departmental quota and direct recruits selected from open quota in the same year and accordingly it has superseded the earlier order passed in G.O. Ms. No.1054 dated 13.04.1995. Even this order has not been notified in the gazzette. While so, after several years, the government issued G.O. Ms. No.868, Home (Police-VI) Department dated 21.11.2017 amending Rule 25 (a) of Special Rules for fixation of seniority of 20% Departmental quota candidates above the open quota candidates with retrospective effect from 13.07.1995, the date on which G.O. Ms. No.1054 dated 13.07.1995 was issued, which was subsequently superseded by G.O. Ms. No.461 dated 10.06.2009. According to the learned counsel, as on date, there is no provision under Special Rules earmarking 20% of vacancies of direct recruitment to be filled up with service candidates. While so, in the absence of allocation of 20% vacancies of direct recruitment for service candidates under the Special Rules, there cannot be any incorporation of provision as per the impugned Government order for conferring seniority to the "non-existing group" under the special Rules. The amendment made has no basis for enforcement in the absence of enabling provision under the Special Rules earmarking 20% of vacancies of direct recruitment for departmental quota. In any event, the question of conferring retrospective amendment to Special Rules from 13.07.1995 is not sustainable. When fixation of seniority is as per Rule 25 (a) of Special Rules, seniority of a person shall be determined by the rank obtained by him in the list of approved candidates drawn up by the appointing authority, subject to rule of reservation and it cannot be impeached or overridden by adding a proviso to the main Rule. In any event, according to the learned counsel, placing the departmental candidates over and above the open quota candidates would completely undermine the assessment of comparative merit in the selection. There is no intelligible differentia between the open quota candidates and departmental candidates participating in the selection by direct recruitment with reference to fixation of inter-se seniority. In no other service where vacancies were earmarked for service candidates, priority is given to service candidates in the matter of seniority. In this context, the learned counsel relied on the decision of the Honourable Supreme Court in ( K. Kuppusamy and another vs. State of Tamil Nadu and others) reported in 1998 (3) Supreme Court Cases 469 wherein it was held as follows:-
