Administrative instruction cannot supersede statutory rule.

This writ petition is filed challenging the order of the first respondent, viz., the Commissioner of Commercial Taxes dated 23.7.2004. Under the impugned order, the first respondent has passed an order of reversion against the petitioner reverting him as Assistant Commercial Tax Officer from Deputy Commercial Tax Officer and posted him as Superintendent in the Office of the Commercial Tax Officer-I, Tuticorin.

2. The case of the petitioner is that while the petitioner was working as Assistant Commercial Tax Officer, certain charges were framed against him on 25.5.2000. In the panel of promotion for the post of Deputy Commercial Tax Officer for the year 1999, the crucial date for promotion is 1.3.1999, in which the petitioner's name was also included. Thereafter, by an order dated 7.7.2000, the first respondent has issued an order of promotion as Deputy Commercial Tax Officer to the petitioner as well as to the other candidates. Subsequently, by the impugned order dated 23.7.2004, the first respondent has chosen to revert the petitioner as Assistant Commercial Tax Officer from Deputy Commercial Tax Officer on the ground of pendency of charge memo framed against the petitioner dated 25.5.2000, stating that it was not brought to the notice of him. As per the guidelines issued in Government Lr. Ms. No. 248, Personnel and Administrative Reforms (S) Department dated 20.10.1997, pendency of charges framed under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, should be held against the officer concerned. It was on these two grounds, the impugned order came to be passed by reverting the petitioner. Admittedly, before passing the impugned order, no notice was also given to the petitioner.

3. Learned Special Government Pleader filed a counter affidavit. The main reliance is placed on the letter dated 20.10.1997 issued by the Government. As per the said letter, according to the respondent, the guidelines categorically states that the pendency of charges framed under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and Appeal) Rules, should be held against the concerned officer and therefore his name should not be included in the panel of promotion. According to the respondents, it was only based on the guidelines issued by the Government, the respondents have acted, which cannot be found fault with. That apart, the counter proceeds to mention about the seriousness of the charges framed against the petitioner. As far as the knowledge about the pendency of the charge of the first respondent is concerned, the same was sought to be justified on the ground of mistake.

4. Mr. Vellaichamy, learned counsel for the petitioner would submit that the first respondent cannot disown the responsibility by merely saying that the pendency of charge memo was not brought to his notice. In that regard, learned counsel for the petitioner would submit that in fact, the charge memo was framed by the Deputy Commissioner of Commercial Taxes on 25.5.2000. The crucial date for promotion to the post of Deputy Commercial Tax Officer for the year 1999 was 1.3.1999, but the charge memo itself was framed against the petitioner, only on 25.5.2000. There is absolutely no bar for the purpose of including the name of the petitioner in the promotion panel. Further, learned counsel for the petitioner would contend that the authority cannot expect the petitioner to tell about the charge memo which is pending against him. It is relevant to point out that even the charge memo framed by the Deputy Commissioner, Commercial Taxes Department has been informed by the Deputy Commissioner, Commercial Taxes Department to the first respondent, as it is seen in the charge memo itself and therefore it can never be said that the first respondent had no knowledge about the pendency of the charge memo.

5. Learned counsel for the petitioner would submit that as far as the letter of the Government dated 20.10.1997 is concerned, it is only an executive i