The central legal point established in the judgment is the interpretation and application of the Tamil Nadu Fire Service Rules, G.O.(D) No.119 Home (Police-17) Department dated 18.02.2015, Act 14, of 2016, and G.O.Ms.No.91, Personnel and Administrative Reforms (S) Department, dated 14.08.2015 in determining the availability of posts for direct recruitment and the impact on the petitioner's promotion.

1. This Writ Petition has been filed to issue a Writ of Certiorarified Mandamus, to quash the recruitment notification issued by the second respondent dated 09.11.2016 insofar as the same relates to Sl.No.6 calling for application to fill up eight posts of District Fire Officer/Divisional Fire Officer and to direct the respondents to fill up the existing vacancies immediately by transfer of service as per Tamil Nadu Fire Service Rules.

2. The case of the petitioner in the affidavit filed in support of the Writ Petition are as follows:

2.1. The petitioner was originally appointed as Station Officer Grade-I in the Tamil Nadu Fire Subordinate Services under the third respondent. The petitioner was promoted in the year 2011 as Assistant District Fire Officer, now known as Assistant Divisional Fire Officer. Upto the posts of Assistant District Fire Officer/Assistant Divisional Fire Officer, the employees come under the Tamil Nadu Fire Subordinate Service Rules and from the next post of Divisional Fire Officer/District Fire Officer, the employees come under the purview of the Tamil Nadu Fire Service Rules. The appointing Authority to the post of Divisional Fire Officer is the first respondent. The post, which was previously known as District Fire Officer is re-designated as Divisional Fire Officer by the first respondent. The post of Divisional Fire Officer comes under Clause-2 of Category-II of the Tamil Nadu Fire Service Rules.

2.2. The said post can be filled up by promotion and also by direct recruitment in the ratio of 2:1. The feeder category for the post is the Assistant Divisional Fire Officer. Though it is called as promotion, actually it is a transfer of service from the Tamil Nadu Fire Subordinate Service Rules. The Government issued in G.O.(D) No.119 Home (Police-17) Department dated 18.02.2015, declaring the total sanctioned post of Divisional Fire Officer as 17. Since the category cadre strength of Divisional Fire Officer, which is a permanent post is only 17 and already 5 persons, who were directly recruited as Divisional Fire Officers are working, out of the remaining vacant posts, which represent 2/3 of the cadre strength has to be filled up only by promotion, from the post of Assistant Divisional Fire Officer. The petitioner, who is working in the feeder category for more than 6 years is entitled to be considered for promotion. However, by the impugned notification, the second respondent has called for applications to fill up 8 vacancies in the post of Divisional Fire Officer/District Fire Officer.

2.3. Having regard to the sanctioned cadre strength of Divisional Fire Officer, there is no vacancy that can be filled up by direct recruitment by the respondents. Since already 1/3 vacancies meant for direct recruitment had been filled up, all the remaining vacancies are only to be filled up either by promotion or by transfer of service. Though there are 17 temporary posts created in the recent years, the permanent post alone can be filled up and therefore by creating temporary post, there cannot be fresh recruitment which is not permissible under the service Rules. Since the 8 posts of District Fire Officer/Divisional Fire Officer which are meant for accommodating the Assistant Divisional Fire Officer, the feeder category, the impugned notification calling upon applications by direct recruitment is illegal in as much as no post is vacant for direct recruitment as per the Rules. It is only for the above reason, it is stated that the petitioner is constrained to file the present Writ Petition challenging the recruitment notification insofar as the same relates to the filling up of 8 post of Divisional Fire Officer/District Fire Officer.

3. The third respondent file a detailed counter inter alia pointing out the following facts:

3.1. It is stated in the counter that the post of District Fire Officer was re-designated as Divisional Fire Officer is not correct as the post of Divisional Fire Officer has been re-designated a