TaxTMI 
TaxTMI 
2016 (8) TMI 1514
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....lates to promotion. The writ petition in W.P.No.11618 of 2009 is one among the batch of writ petitions filed in W.P.Nos.11618 of 2009, 18847 to 18853 of 2009 and 21448 to 21455 of 2009. Since common facts were involved in those writ petitions, the learned single Judge of this Court has dealt with the facts involved in W.P.No.11618 of 2009. 2.The facts arising out of the writ petition in W.P.No.11618 of 2009 from which the present writ appeal has arisen, are as follows: (i)The prayer in W.P.No.11618 of 2009 was 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 ....
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....ments which could be made in the cases of emergency, to meet immediate necessity in the interest of administration. The appointments were not made in accordance with Rules, but de hors the Rules. Therefore, the Hon'ble Supreme Court followed the well settled law that the Rules do not confer any right to the appointee, to claim seniority over others who were regularly appointed, though later in time in accordance with relevant Rules. The Hon'be Supreme Court also took note of the observation of this Court which reads as under: '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 ....
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....s by producing Government orders, by which the posts were sanctioned. The seniority list drawn by order dated Proc.No.P1/ 49719/2000, dated 04.07.2000 were challenged by some direct recruits A.C.T.Os in O.A.No.7243 of 2000 before the Tamil Nadu Administrative Tribunal which were transferred to this Court as W.P.No.2571 of 2007 and the same was subsequently withdrawn. (ii)The petitioner in W.P.No.11618 of 2009/the appellant herein, pleaded that the cadre of A.C.T.Os consists of 271 permanent posts and 1038 temporary posts. According to Rule-2 of the 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 again....
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....vice Rules, nor he could have been promoted to next higher post. The writ petitioner / appellant also pressed into service the law of the Doctrine of Legitimate Expectation.' (iv)In the counter filed by the respondents 3 to 7, in the writ petition, the averments made by the writ petitioner / appellant were denied. The stand taken by them was that the impugned order was issued in accordance with the orders of the Division Bench of this Court in W.P.No.12786 of 1985 dated 19.06.1986 passed in conformity with Rules, as upheld by the Hon'ble Supreme Court 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,....
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.... G.O.Ms.No.1368 Finance (E-II) Department dated 04.11.1963 was issued directing that the temporary posts which have been in continuous existence for over three years should be made permanent, but the said G.O. still remains to be implemented. The learned single Judge rejected the contention of the writ petitioner, since a decision has been taken vide G.O.Ms.No.1, Commercial Taxes and Registration (A2) Department, dated 04.01.2010, to retain 2217 temporary posts permanently. However, the order was made prospective. (vii)The learned counsel for the writ petitioner referred 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 appointe....
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....sferee, date is fixed from the date of vacancy in the permanent post. The learned single Judge rejected the said contention made by the learned counsel for the writ petitioner stating that the direct recruits were appointed against the substantive vacancies whereas transferees were appointed in excess of their quota by way of temporary appointment; that is what has been clarified by the Division Bench of this Court, which stands affirmed by the Hon'ble Supreme Court. (x)It was also contended by the learned counsel for the writ petitioner that the procedure adopted in framing 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 ....
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....milarly, in A.K. Subraman v. Union of India, (2) while holding that the cadre of Executive Engineers in Class I Central Engineering Service consisted both of permanent and temporary posts, it was pointed out by this Court that a cadre may consist of permanent posts only or "sometimes, as is quite common these days, also of temporary posts". Counsel for direct recruits relied upon a decision of this Court in Ganga Ram & Others v. Union of India(3) for showing that a cadre cannot consist of temporary posts but that decision rested on the finding, arising out of rules contained in the Indian Railway Establishment 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 f....
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....ve been easily avoided. The proviso to Rule 7 prescribes a system of quota and rota. why was that rule put in cold storage by creating temporary posts in the Service when permanent posts were clearly called for? Permanent posts could have been allocated to direct recruits and promotees in the ratio of one to two. In these circumstances, it will be wholly unjust to penalize the promotees for the dilatory and unmindful attitude of the authorities. It is not fair to tell the promotees that they will rank as juniors to direct recruits who were appointed five to ten years after they have officiated continuously in the 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 cad....
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.... in the year 1985 by transfer from the list of approved candidates drawn in accordance with General Rule-4 and Special Rule-3 by the competent authority after considering the claims of all contesting candidates. His appointment was not temporary, fortuitous or it was made by way of stop gap arrangement. After his regular appointment as ACTO, he got three promotions first as Commercial Tax Officer in the year 1998 and then as Assistant Commissioner in the year 2003 and then as Deputy Commissioner in the year 2010. In the seniority list impugned in the writ petition, fixing seniority of ACTOs during 30 years period right from 1968 till 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 subm....
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....r the appointees to the 1038 temporary posts of ACTO are entitled for the right to seniority or not. In other words, the question is whether the cadre of ACTO includes temporary posts also. The further submission of the counsel was that the learned single Judge failed to interpret the judgment of the Hon'ble Supreme Court in Civil Appeal No.1454 of 1987 in a correct perspective and that the learned single Judge has failed to see that no universal principle of law binding future cases was laid down by the Hon'ble Supreme Court in Civil Appeal No.1454 of 1987. Therefore, the learned single Judge has erred in concluding that the prospective 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 s....
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....-Rule 35(aa) period, has no direct relevance to this writ appeal. He finally submitted that the matter involved in this writ appeal has already been decided by the Hon'ble Supreme Court in the case of S.B.Patwardhan v. State of Maharashtra, reported in AIR 1977 SC 2051, wherein, the method adopted in the impugned seniority list has been held to be unconstitutional and hence the learned single Judge ought to have struck down the impugned seniority list following the ratio of that judgment. 8.The learned senior counsel for the appellant relied on the judgment of the Hon'ble Supreme Court in Baleshwar Dass and Others v. State of U.P. and Others, 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' a....
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....Rules 7 and 8 which could be read in unison with General Rule 35(aa). 10.Inviting the attention of this Court to the additional counter affidavit dated 01.03.2016 filed by the second respondent on behalf of both the respondents 1 and 2, the learned Advocate General, submitted that the Commercial Taxes Department had a re-look at the inter-se seniority lists of Deputy Commercial Tax Officers drawn for 1968 to 2006 and for the subsequent years and recognised several deficiencies. Therefore, the Department has referred the matter to the Government for finding an appropriate redressal mechanism whereupon the Government have constituted a High Level Committee 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 ....
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....es laid down by this Court and confirmed by the Hon'ble Supreme Court. The appellant is challenging the resultant seniority list dated 04.05.2009 with the same old untenable arguments which were already rejected by this Court as well as the Hon'ble Supreme Court. He further submitted that the State Government had also issued G.O.(D)No.132 dated 31.03.2015 by which a High Level Committee as constituted for filing curative petition before the Hon'ble Supreme Court regarding inter-se seniority between the direct recruits and transferees in the Commercial Taxes Department. He further submitted that the method of recruitment stated in General Rule 35(aa) is 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 s....
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....ding to the learned Senior Counsel, the occupants of temporary posts cannot claim seniority as their service in such posts is ad-hoc. 15.Mr.Richardson Wilson, learned counsel for the respondents 19 and 20, adopted the arguments made by Mr.P.Wilson, Sr.Counsel appearing for the fourth respondent. 16.Heard the learned counsel on either side and perused the materials available on record carefully. 17.The order passed by 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, was challenged before this Court in W.P.No.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 or....
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....claim seniority over others who were regularly appointed, though later in time in accordance with relevant Rules. 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 and placed reliance on the judgment of the Hon'ble Supreme court in A.I.R. 1984 SC 1291 (P.S.Mahal Vs Union of India). 19.It is seen from the records that the Hon'ble Supreme Court took note of the tabular statement placed before this Court showing 40% of the substantive vacancies to be filled up by way of direct recruitment and out of the remaining 60%, 50% of the substantive 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'....