TMI Blog2016 (8) TMI 1514X X X X Extracts X X X X X X X X Extracts X X X X ..... they had held the post substantively within the permanent cadre strength allotted to the particular category even before the writ petitioners commenced their probation. On a perusal of the records, this Court finds that the Government only challenged the direction given by this Court with regard to Assistant Commercial Tax officers placed at Sl.Nos.129 to 519 in the impugned seniority list, before the Hon'ble Supreme Court in Civil Appeal No.1454 of 1987. The objection raised was to the expression permanent cadre strength. The stand of the State Government was that employees holding the temporary posts prior to appointment of the writ petitioners before this Court, should also be considered for the purpose of fixing the seniority and they should not be omitted out of consideration. One another stand of the Government was that temporary appointment to a permanent post was different from regular appointment to a temporary post. The contentions were rejected for the reason that there was nothing to show that the cadre strength fixed by the Government in any particular year comprised not only permanent posts, but also temporary posts. It is apparent that the promotion as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to quash the order of the second respondent in Proc.No.P1/58439/2007 dated 04.05.2009 communicating inter-se seniority list of Assistant Commercial Tax officers (hereinafter referred to as A.C.T.Os.) for the year 1968 to 2006. The said order was passed pursuant to the judgment of the Hon'ble Supreme Court in Civil Appeal No.1454 of 1987 dated 10.02.1999. (ii)Originally, the Government of Tamil Nadu published the provisional seniority list of Assistant Commercial Tax Officer in the year 1985 and the same was challenged before this Court in W.P.No.12786 of 1985 on the ground that the regular rule for fixing the seniority was not followed by the State Government. This Court considered the matter in detail and by order dated 19.06.1986, set aside the provisional seniority list. While assailing the provisional seniority list, this Court also laid down certain guidelines. In the operative part of the judgment, this Court directed that on the basis of guidelines in the judgment, the Assistant Commercial Tax Officers at Sl.Nos.129 to 519, in the impugned seniority list can be placed above the writ petitioners over the direct recruits in the inter-se seniority list, only if they ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder: Even though Mr.Peter Francis, learned counsel for the petitioners argued that the transferee A.C.T.Os, who had been appointed over and above their quota must have been appointed either under Rule 10(a) (i) or 39(a) of the General Rules, we find that as the transferees were from the services of the Ministerial service to a subordinate service, they should have been appointed only under the Rule 10(a)(i). This doubt has not been cleared on the side of the respondents as well. But that will not make any differences as the substance of Rule (1) and Rule 39 of the General Rules is the same, in the sense, the former applies to temporary appointment and the latter to temporary promotion. In view of the above, any appointment made, though all persons eligible or qualified by way of transfer in excess of their respective quota, would be otherwise than in accordance with the Rules. (iii)It is relevant to point out at this juncture that this Court has held that the transferees, who could not be accommodated in the quota reserved for them, cannot claim seniority over direct recruits as and when such direct recruits replace them. This Court placed reliance on the judgment of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Special Rules to Tamil Nadu Commercial Taxes Subordinate Service, 33-1/3% of the vacancies in the permanent posts are to be filled up by direct recruitment, and remaining 66-1/3% of the vacancies in the permanent posts by transfer. The writ petitioner /appellant was appointed to the post of A.C.T.O by transfer from the Tamil Nadu Ministerial Service in the year 1985 from the list of approved candidates drawn by the second respondent for the year 1985, in accordance with the rules applicable to such appointment. The writ petitioner /appellant herein, started working as A.C.T.O in the year 1987. He claims that he was appointed against one of the 66- 2/3% vacancies of the permanent posts or 100% vacancies in the temporary posts, which, during the year 1985, were reserved for the transferees, and that he was not appointed against 33-1/3% of vacancies in the permanent posts that occurred during the year 1985, for direct recruitment. The petitioner/appellant herein, was promoted from the post of A.C.T.O. to the higher post of Commercial Tax officer (CTO) in the year 1998 and further promoted to the post of Assistant Commissioner in the year 2003. In the impunged seniority list, the na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt in Civil Appeal No.1454 of 1987 decided on 10.02.1999. It was pleaded that the writ was bad for non joinder of necessary parties, as the petitioners therein have challenged the seniority list without impleading the persons to be affected, as parties. On merit, the stand taken by them was that the contesting respondents were recruited through Tamil Nadu Public Service Commission as A.C.T.O. in the year 1990 for the vacancies which had arisen for the year 1986 1987. During the year 2001 and 2003, the contesting respondents were promoted as D.C.T.O., and the fourth respondent was also promoted as Commercial Tax officer, now designated as Assistant Commissioner in the year 2004 and further promoted in the year 2006 from the date of initial appointment. It was also pleaded that though provisional inter-se seniority list was published on 01.12.2008 in terms of the order passed by the Division Bench of this Court as affirmed by the Hon'ble Supreme Court, objections were invited and after considering those objections, the impugned order was passed. In sum and substance, the stand in the counter affidavit filed by the respondents 3 to 7, was that all the contentions raised in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred to rules dealing with matter of recruitment to contend that the post of A.C.T.O. has to be filled up by two methods; i.e. direct recruitment and recruitment by transfer from amongst Assistants in Tamil Nadu Assistant Ministerial Service and those in the secretariat, Commissioner's office and STAT by transfer. Therefore, the contention was that 1038 temporary posts of A.C.T.O. were to be filled up by way of transfer. The learned single Judge rejected this contention also, as the dispute in the case on hand is with regard to the seniority between the persons appointed to the cadre, and the persons appointed to the post not falling in the cadre. Another contention of the writ petitioner was that in actual practice, the rule of appointment was violated, which has resulted in confusion, as it will not be possible now, to know whether transferee A.C.T.O was appointed to permanent post or to temporary post. This contention was also rejected by the learned single Judge stating that from the date of availability of vacancies, and the date of appointment, it can easily be found out as to whether the person was appointed to the post in the cadre, or to a temporary post not included ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ming the impugned seniority list violates the order of the Government in G.O.Ms.No.624 which lays down that the estimated vacancies in permanent posts every year should be filled up by direct recruitment to different post against the vacancies which are expected to arise on account of the retirement of permanent incumbents in the panel year for which recruitment is made, and to the vacancies that arise during the panel year from the following causes during the panel year: (a)Provisions of the date when the vacancies for the direct recruitment are due i.e. Appointment and confirmation of permanent incumbent in another service. (b) Death of permanent incumbent. (c) Permanent retention of the temporary post. (xi)The learned single Judge observed that it was not the case of the petitioner that 271 permanent posts have been arrived at in violation of G.O.Ms.No.624, and therefore, the said contention is not relevant to the case on hand. (xii)It was also contended by the learned counsel for the writ petitioner before the Writ Court that the impugned seniority list affects the rights of the petitioner and it violates Article 335 of the Constitution of India. This conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blishment Manual, that direct recruits and promotees constitute different classes. The question which we have to consider at this stage is not whether direct recruits and promotees appointed as Deputy Engineers in the Bombay and Gujarat service of Engineers belong to different classes but Whether officiatng Deputy Engineers belong to class II cadre at all., (xiv)The learned single Judge rejected this contention also, stating that it cannot be accepted as the Hon'ble Supreme Court in Civil Appeal No.1454 of 1987 decided on 10.02.1999 (State of Tamil Nadu v. S.Sundararaj and four others) dealing with the rules in this case, has held that the temporary posts do fall in the cadre, and therefore, the writ petitioner cannot draw any benefit from the said judgment. (xv)The learned counsel for the writ petitioner further contended that the ratio of judgment of the Hon'ble Supreme Court referred above would not be applicable to the facts of the present case, as the Hon'ble Supreme Court did not reject the contention raised therein in toto on merits. The counsel submitted that the Hon'ble Supreme Court rather observed that the contention has force, but it was rejected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posts created in the Service and held by them, though such posts may be temporary. This Court, at least, must fail them not., (xvii)This above contention of the learned counsel for the writ petitioner was also rejected by the learned single Judge. It was held by the learned single Judge that a reading of the judgment shows that temporary posts were created in the cadre under Rule 16(1) of the rules which were under consideration. But in the present case, there is a positive finding by the Hon'ble Supreme Court that the temporary post did not form part of the cadre and for the same reason, the judgment of the Hon'ble Supreme Court in the case of Baleshwar Dass Vs State of U.P. (1980)4 SCC 226) will not be applicable. (xviii)The learned single Judge further held that the judgment of the Hon'ble Supreme Court in the case of A.Janardhana Vs Union of India in (1983)3 SCC 601 on which reliance was placed by the learned counsel for the writ petitioners, can also be of no help to the petitioners, as in that case, again the appellant therein rendered service on the post included in the cadre, whereas the Hon'ble Supreme Court in this case has recorded a positive find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill 2006, his name does not appear anywhere in that list. As a small mercy, his name was included in a supplemental list under the title List of Temporary ACTOs-2006 in Sl.No.159. This means that even a direct recruit ACTO who was appointed only yesterday, would be senior to him, and even a person who will be appointed as a direct recruit ACTO tomorrow will also be senior to him, since he has been treated only as a temporary ACTO for whom the time for treating him as a regular ACTO has not yet come. The learned senior counsel for the appellant submits that the impugned seniority list, at the stroke of a pen, has removed the appellant's 22 years seniority without a trace. He further submits that to add insult to the injury, the impugned seniority list has placed him under the imminent threat of being reverted from his present post of Deputy Commissioner three rungs down to the post of Temporary Assistant Commercial Tax Officer awaiting regularisation in that post. 7.The learned senior counsel for the appellant further submits that similar fate has been cast on Promotee ACTOs appointed in the years 1979, 1980 and 1982, who, by virtue of the seniority list could count their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ective effect given to G.O.Ms.No.1, dated 04.01.2010 fortifies the factual finding that the cadre did not have temporary posts. In his submissions, the learned senior counsel for the appellant has mainly contended that there was blatant violation of General Rule 35(aa) of the Tamil Nadu State and Subordinate Service Rules. General Rule 35(aa) of the Tamil Nadu State and Subordinate Service Rules, is extracted hereunder: The seniority of a person in a service, class, category or grade shall, where the normal method of recruitment to that service, class, category or grade is by more than one method of recruitment, unless the individual has been reduced to a lower rank as a punishment, be determined with reference to the date on which he is appointed to the services, class, category or grade; Provided that where the junior appointed by a particular method or recruitment happens to be appointed to a service, class, category or grade, earlier than the senior appointed by the same method of recruitment, the senior shall be deemed to have been appointed to the service, class, category or grade on the same day on which the junior was so appointed: Provided further that the ben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , reported in (1980) 4 SCC 226, in support of his contention that holder for long of temporary post in substantive capacity becomes a member of the Service; appointment made for indefinite long period after satisfying all the tests for regular appointment and in consultation with Public Service Commission would be in 'substantive capacity' and such temporary appointees on completion of probation become members of that Service and that temporary post under the Rules was as much a 'post in the cadre of the Service' and hence the entire length of officiating service of such temporary servants to be considered in determining their seniority in the service vis-a-vis those holding permanent posts. 9.A Counter affidavit dated 07.12.2015 has been filed by the second respondent on behalf of both the respondents 1 and 2. Mr.A.L.Somayaji, learned Advocate General, assisted by Mr.S.T.S.Moorthy, Government Pleader, stated that it has been the stand of the Department all along that it had made regular appointments to temporary posts as well and that the said posts were within cadre. Regular posts and temporary posts put together constitute the cadre strength based on which pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... comprising of the Principal Secretaries of the Government in the Department of Finance, Personnel and Administrative Reforms, Commercial Taxes and Registration, Secretary, Law and Principal Secretary / Commissioner of Commercial Taxes, by issue of G.O.Ms.No.132, Commercial Taxes and Registration Department, dated 31.03.2015. He also stated that while examining the relevant material papers of Rules, Court Orders, Proceedings and seniority lists in connection with the presentation of the facts before the Committee, the second respondent has arrived at a prima facie inference that the inter se seniority lists drawn up in pursuance of the directions of the Hon'ble Supreme Court in Contempt Petition (C) No.263 of 2007 in Civil Appeal 1454 of 1987 is to be looked into in various aspects in order to bring them into consonance with the rule provisions. It has been further stated that the revised seniority lists have been tentatively drawn up for all categories of posts in the Department commencing from Deputy Commercial Tax Officer and Commercial Tax Officer in the Subordinate Services to Assistant Commissioner, Deputy Commissioner, Joint Commissioner and Additional Commissioner in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the one referred in Rule 6(a) which deals about the method of recruitment as against the substantive vacancies in the permanent cadre and therefore, Rule 35(aa) cannot be read in isolation with regard to fixation of seniority nor services rendered in the temporary post outside the cadre and quota can be counted towards seniority. Stating so, the learned Senior Counsel for the fourth respondent has submitted that the writ appeal has to be dismissed. 12.Mr.AR.L.Sundaresan, learned Senior Counsel appearing for the sixth respondent, narrated the facts involved in the case and submitted that the promotion as well as upgradation are only for the permanent posts and hence G.O.Ms.No.1, Commercial Taxes and Registration (A2) Department, dated 04.01.2010 has to be considered. In fortification of the said contention, he relied on G.O.Ms.No.17, Commercial Taxes and Registration (A2) Department, dated 10.02.2014 and G.O.Ms.No.47, Commercial Taxes and Registration (A2) Department, dated 31.03.2015, and submitted that those Government Orders also have to be considered. Further, he submitted that the seniority list placed before the Hon'ble Supreme Court, has been agreed to by all the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11618 of 2009. The said order was passed pursuant to the judgment of the Hon'ble Supreme Court in Civil Appeal No.1454 of 1987 dated 10.02.1999. Originally, the Government of Tamil Nadu published the provisional seniority list of Assistant Commercial Tax Officer in the year 1985 and the same was challenged before this Court in W.P.No.12786 of 1985 on the ground that the regular rule for fixing the seniority was not followed by the State Government. This Court considered the matter in detail and by order dated 19.06.1986, set aside the provisional seniority list. While assailing the provisional seniority list, this Court also laid down certain guidelines for drawing the seniority list. In the operative part of the judgment, this Court directed that on the basis of guidelines in the judgment, the Assistant Commercial Tax Officers at Sl.Nos.129 to 519, in the impugned seniority list can be placed above the writ petitioners over the direct recruits in the inter-se seniority list, only if they had held the post substantively within the permanent cadre strength allotted to the particular category even before the writ petitioners commenced their probation. 18.On a perusal of the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntive vacancies to be filled up by confirmation of persons recruited by transfer from among the Assistants and Gujarathi knowing Assistants employed in the Commercial Taxes Department and 10% of substantive vacancies by transfer from among the Assistants and Superintendents working in the Sales Tax Appellate Tribunal, Assistants and Superintendents working in the Commercial Taxes Branch of the Board of Revenue and Assistants who have dealt with or dealing with the subject 'Commercial Taxes' in the Commercial Taxes and Religious Endowments Department of the Secretariat. The Hon'ble Supreme Court therefore took note of the fact, that in the tabular statement, reference was expressly made to substantive vacancies which indicates that the reference was to apply to permanent posts which are substantive vacancies. It was also taken note that no material was placed to show that cadre comprised both the permanent and temporary posts. Therefore, the Hon'ble Supreme Court, by judgment dated 10.02.1999, confirmed the judgment passed by this Court in W.P.No.12786 of 1985 dated 19.06.1986, holding that as per the chart placed from the year 1972 to 1997, there were only 271 per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by them. With regard to the increase in cadre strength on 04.01.2010, since the list in this respect has been produced before the Hon'ble Supreme Court, the same cannot be tested at this juncture, before this Court. When the Hon'ble Supreme Court had considered the matter in detail and passed the order dated 10.02.1999 in Civil Appeal No.1454 of 1987, confirming the judgment of this Court in W.P.No.12786 of 1985 dated 19.06.1986, based on the list produced and thereafter, passed the order dated 20.10.2008 in Contempt Petition (C) No.263 of 2007 in Civil Appeal 1454 of 1987, directing the State to publish seniority list in terms of the directions given, this Court is of the considered view that the matter has reached finality and any endeavour to re-agitate the matter on a new ground, cannot be countenanced. The attempt of the appellant is nothing but re-appreciating or re-arguing the case which had already been decided by the Hon'ble Supreme Court and hence such an act to re-agitate is only to be rejected. If the appellant has any grievance with regard to the judgment passed by the Hon'ble Supreme Court, he has to approach the Hon'ble Supreme Court seeking nece ..... 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