TMI Blog2020 (11) TMI 684X X X X Extracts X X X X X X X X Extracts X X X X ..... vocate General that the seniority list that was placed before the Hon'ble Supreme Court in the contempt proceedings would operate only up to the year 2010 and would change thereafter on account of the increase in cadre strength both in the year 2010 and 2013. It also records the fact that direct recruits and promotees disagree as to whether the seniority list meets the parameters. After recording the aforesaid, in paragraph 8, the Division Bench directed the State Government to await the outcome of W.A. No.2280 of 2011 and proceed in terms of the four principles set out in paragraph 4. Therefore, it is clear that the Division Bench did not impose an embargo on the State Government so as to prevent the preparation of the seniority list but made it clear that the preparation of the seniority lists should be in accordance with the four principles. The reason for directing the State Government to await the outcome of the judgment in W.A. No.2280 of 2011 is stated in paragraph 2 of the above judgment and will be clear when the nature of the said dispute is examined. The State Government is entitled to prepare the seniority lists by adhering to the applicable general and specia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Subordinate Service and to the entry level post of AC (now DC) in the State Service is both by direct recruitment and by transfer from the Ministerial Service and Subordinate Service, respectively. 2. The battle between direct recruits and transferees in the Commercial Tax Department is a long drawn saga, which primarily related to the filling up of the promotional posts in the prescribed ratio as between those promoted and direct recruits (currently 2:1) and the preparation of seniority lists in accordance with applicable general and special rules. For the present purposes, it is sufficient to trace the history of the dispute to the provisional seniority lists of ACTO and DCTO, which were prepared by the Commissioner of Commercial Taxes, on 17.09.1985 and 30.10.1985, respectively, upon taking the decision to consolidate the four divisions of Chennai, Coimbatore, Trichy and Madurai. The said inter-se seniority list of ACTO and the consequential DCTO lists were challenged in W.P. No. 12786 of 1985 by the directly recruited DCTO's. While rejecting the provisional seniority lists and disposing of the matter, the Division Bench of this Court adopted from an earlier judgment a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overnment agreed to publish a fresh seniority list. Based on assurances by the State Government, the Contempt Petition was closed by order dated 04.03.2009. Thereafter, by superseding earlier lists, a provisional inter se seniority list of ACTO from 1968 to 2006 was published on 01.12.2008 and objections were invited in respect thereof. Upon considering the objections, the inter se seniority list was confirmed subject to certain modifications and annexed to Proceedings dated 04.05.2009 (Proc.No.P1/58439/2007). Upon challenge, this Court, by order dated 06.04.2011 in W.P. No.11618 of 2009 batch, rejected the challenge to the seniority list. Pursuant thereto, a seniority list of DCTO for the years 1982 to 2010 was drawn and communicated by Proceedings dated 18.08.2011 (Proc.No.P1/15245/2011). A list of DCTO/CTO fit for appointment as CTO/AC was prepared under G.O. (Ms.) No.69, Commercial taxes and Registration Department dated 04.06.2012 (G.O.Ms. No.69). Similarly, under G.O. (Ms.) No. 116, Commercial Taxes and Registration (E1) Department dated 24.08.2012 (G.O. Ms. No.116), the inter se seniority in the regular list of CTO/AC by direct recruitment and by recruitment by transfer fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt and the seniority list placed before the Hon'ble Supreme Court and concluded that the same pertains only to permanent posts and cannot be interfered with. On that basis, W.A. No.2280 of 2011 was dismissed. The present litigation, therefore, represents the third round. 5. Pursuant to the aforesaid orders of the Division Bench of this Court in the year 2016, it appears that a High Level Committee was constituted by the State Government. On the basis of the minutes of the meeting of the High Level Committee on 23.02.2018, it appears that measures were taken to revise the seniority list as per the additional counter affidavit dated 01.03.2016 of the Principal Secretary/Commissioner of Commercial Taxes in W.A. No.2280 of 2011. Apprehending that such revision would impact the seniority of the private Respondent, in each writ appeal, the three writ petitions giving rise to the present appeals were filed. By the impugned order, the learned single Judge disposed of the writ petitions by issuing certain directions in paragraph 38 of the order. In particular, the learned single Judge referred to paragraph 20 of the judgment of the Division Bench dated 31.08.2016 in W.A. No.2280 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in fact, they were not parties to the said writ appeal. However, insofar as temporary posts would be reckoned if the writ appeal was allowed, the outcome of the said writ appeal would have a bearing on the preparation of the seniority list in accordance with the four principles laid down by the Hon'ble Supreme Court. In that context, the Division Bench of this Court, by order dated 28.07.2016, directed the State Government to await the outcome of W.A. No.2280 of 2011. Once W.A. No.2280 of 2011 was dismissed by order dated 31.08.2019, there was no impediment whatsoever for the State Government to proceed to prepare the seniority list and make necessary changes thereto. Indeed, this process was commenced by the State Government, including by forming the High Power Committee. 8. In these circumstances, Mr.Ravi contended that the private Respondent, in each writ appeal, filed writ petitions for a writ of certiorarified mandamus to prevent the State Government from acting in furtherance of the order dated 28.07.2016 in the batch of 59 cases. According to Mr.Ravi, these writ petitions were therefore liable to be rejected as frivolous cases which were meant to prevent the Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 10. Mr.Arvind Pandian, the learned Additional Advocate General, invited the attention of the Court to paragraph 21 of the counter affidavit of the State and pointed out that the State Government does not want to take sides in the dispute between the two groups of employees. Instead, the State Government would like to maintain neutrality as reflected in the averments at paragraph 21 of the counter affidavit. Accordingly, Mr. Arvind Pandian submitted that the State Government would abide by the decision of the Court in this matter. 11. Mr.V.Prakash, the learned senior counsel for the contesting private Respondent, in each writ appeal, provided a historical overview of recruitments in the Commercial Tax Department. In particular, he pointed out that, originally, 40% of the posts were reserved for direct recruitment and that this was subsequently reduced to 33.33%, whereas 66.66% was reserved for recruitment by transfer. The first round of litigation was initiated by Group-II direct recruits such as the private Respondents herein. These persons succeeded before the Division Bench of this Court and the Division Bench adopted the four principles referred to supra . When the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and the private Respondents herein were constrained to file the same because the State Government endeavoured to deviate from the seniority list that had been prepared and placed before the Hon'ble Supreme Court. 13. By way of rejoinder, Mr.Ravi contended that W.A. No.2280 of 2011 dealt with a discrete issue which did not concern the Appellants herein. Indeed, the Appellants herein were not parties to the said writ appeal. Therefore, the judgment dated 31.08.2016 is irrelevant for the present purposes. By inviting the attention of the Court to the judgment dated 28.07.2016, Mr.Ravi emphasized that the said judgment did not restrain the State Government from proceeding to prepare a seniority list in accordance with the four principles adopted by the Division Bench of this Court in the year 1985 and affirmed by the Hon'ble Supreme Court on 10.02.1999. For this purpose, he referred to paragraph 8 of the said judgment. He also pointed out that the State Government is entitled to eliminate anomalies and revise the seniority list both under the Tamil Nadu State and Subordinate Services Rules and the Tamil Nadu Government Servants (Conditions of Service) Act 2016. This proces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the light of the above conclusion, the following principle emerges. 16. If there are vacancies out of the required reservation of 40% in the permanent cadre of A.C.T.O.'s for direct recruits, any appointment made either by transfer or by promotion cannot be utilised to fill up those vacancies. Such appointments being of a temporary character. Whenever direct recruits are appointed through public service commission, they being holders of permanent posts by direct recruitment, they have a right to be appointed to whatever posts that were taken out of the 40% posts reserved for direct recruitment. 23.In the light of the discussion, the impugned seniority list of A.C.T.O.'s has to be revised. It is seen from 3.Nos. 129 to 519, the placements are given to transferee A.C.T.O.'s belonging to either 50% reserved category or 10% reserved category. It follows from the principles now formulated that the A.C.T.O.'s bearing S.Nos.129 to 519 is the impugned seniority list can be placed above the petitioners in interface seniority list only if they had held the post substantively within the permanent cadre strength allotted to the particular category even before the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et out, in entirety, hereunder: The perennial inter se dispute between what may be labelled as the promotees and the direct recruits in the commercial tax department does not seem to see a light at the end of the tunnel till now. This dispute has gone on for years together with the battle being taken right till highest Court. We may notice that a part of the responsibility for this is on the State Government on account of the fact that there has been some flip-flop on the part of the State Government on its stand possibly on account of the importance of the offices held by these officers and with an endeavour to find some 'equitable solution'. The dispute, however, has not been resolved resulting in the appeals we are hearing along with certain writ petitions. 2.We have heard the learned counsels for the parties over a number of days. Suffice to say that one set of parties represented in W.A. No.2280 of 2011 as appellant and respondents have a slightly different case. That we are saying so, as it is their submission that though the battle may have been fought right till the Supreme Court, the war does not end with that. This is so as in terms of their submission c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, there is no quibble and it cannot be so, over the implementation of the Division Bench order of this Court, which has received the imprimatur of the Hon'ble Supreme Court. He acknowledges that the seniority list was placed before the Hon'ble Supreme Court in the contempt proceedings, but the caveat is that the said seniority list would operate upto the year 2010. This, he say so as the cadre strength remained the same till 2010 when the cadre strength was increased. There was a second increase in the cadre strength in 2013. His submission thus is that once the cadre strength increased, dependent on the ratio between the two groups as prescribed under the Rule and the principles laid down by the Hon'ble Supreme Court, the seniority list would have to be revisited. 3. The aforesaid order has been read out, so as to re-confirm that what has been recorded by this Court is what the learned Advocate General states. 4. We have heard the learned Senior Counsels appearing for the direct recruits in Group-I service. After elaborate arguments, the nutshell of the contention is being set out hereinafter. 5. It is conceded that if there is a seat available in the quota m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Division Bench of this Court referred to and extracted an earlier order based on the statement of the learned Advocate General. The said extract refers to the statement of the learned Advocate General that the seniority list that was placed before the Hon'ble Supreme Court in the contempt proceedings would operate only up to the year 2010 and would change thereafter on account of the increase in cadre strength both in the year 2010 and 2013. It also records the fact that direct recruits and promotees disagree as to whether the seniority list meets the parameters. After recording the aforesaid, in paragraph 8, the Division Bench directed the State Government to await the outcome of W.A. No.2280 of 2011 and proceed in terms of the four principles set out in paragraph 4. Therefore, it is clear that the Division Bench did not impose an embargo on the State Government so as to prevent the preparation of the seniority list but made it clear that the preparation of the seniority lists should be in accordance with the four principles. The reason for directing the State Government to await the outcome of the judgment in W.A. No.2280 of 2011 is stated in paragraph 2 of the above ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 permanent posts as against 422 posts which were shown as temporary. In the year 1997, 1080 posts were shown as temporary out of the total 1351 posts, and that no other figures were given for the years 1973 and 1974. The Hon'ble Supreme Court also took note of the fact that no reference was made in the tabular statement, to any G.O. or Rule which fixed the cadre strength shown in the tabular statement. Therefore, it was concluded that if there was increase in the cadre strength from year to year, as contended, there should have been different Government Order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 necessary clarifications, as the seniority list placed before the Hon'ble Supreme Court has been agreed to by all the parties concerned. Therefore, it is for the appellant to approach the Hon'ble Supreme Court, for clarification of the judgment, if so advised. From the above extracts, when viewed in context, it is evident that the conclusions in paragraph 20 of the said Division Bench judgment only pertain to the rejection of an appeal seeking revision of the seniority list of ACTO for the years 1968 to 2006 under Proceedings dated 04. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were premature and should have been rejected for that reason. Instead, the learned single Judge interfered with the preparation of the provisional seniority list in spite of being conscious of the fact that the writ petitions should not be entertained on the basis of apprehensions. Therefore, we conclude that the directions in paragraph 38 of the judgment of the learned single Judge cannot be sustained. Consequently, the order of the learned single Judge is set aside. It is open to the State Government to prepare the provisional seniority lists by reckoning only permanent posts in accordance with applicable general and special rules and the four principles adopted by the Division Bench of this Court and affirmed by the Hon'ble Supreme Court in its order dated 10.02.1999 in C.A. No.1454 of 1987. Once the provisional seniority lists are prepared and published, it will be open to the private parties herein to object to and challenge the same, if they are aggrieved in any manner. 21. In the result, the writ appeals are allowed subject to the observations made herein. No costs. Consequently, connected miscellaneous petitions are closed. - - TaxTMI - TMITax - CST, VAT & Sale ..... X X X X Extracts X X X X X X X X Extracts X X X X
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