TaxTMI 
TaxTMI 
TaxTMI 
2010 (12) TMI 1082
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....ate the services of the petitioners were transferred to the Commercial Tax Department i.e. 10.09.2001. The order dated 27.06.2008 has been challenged on the ground that the same has been passed in a most illegal, arbitrary and malafide manner just to deprive the petitioners from being considered for their merger in the Trade Tax Department and the reasons assigned in the impugned order for repatriation of the petitioners to the Public Works Department (here-in-after referred to as the P.W.D.) on non-availability of post in the Commercial Tax Department are based on unfounded reasons as several posts of Assistant Commissioner are still lying vacant and the respondent no.4 has passed the impugned order without their being any jurisdiction to take decision in the matter as the State Government is the appointing authority of the petitioners and the decision to transfer the services of the petitioners was also taken by the State Government way back in the year 2000-01. The factual matrix of the case as culled out from the pleadings of the writ petition are as under:- The petitioners were appointed on the post of Assistant Engineer (Electrical/ Mechanical) through the U.P. Public Serv....
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....s were given status of Trade Tax Officer Grade-I (now known as Assistant Commissioner Trade Tax) and after expiry of three years tenure their services were extended vide order dated 02.06.2004 and 10.01.2005 respectively by one year each time. The Principal Secretary, Tax & Registration Department wrote a letter to the Principal Secretary, Public Works Department with regard to 18 posts of Assistant Engineer in Public Works Department, who were transferred to the Commercial Tax Department for keeping 18 posts of Assistant Engineer in abeyance so that 18 posts of Assistant Engineer in the Commercial Tax Department be created. The Principal Secretary, Public Works Department sought a report from the Engineer-in-Chief, Public Works Department. The Engineer-in-Chief submitted a report on 21.04.2003 mentioning therein that 10 divisions in Public Works Department have been closed, on account of which, 42 posts of Assistant Engineer had been kept in abeyance and it would not affect the Public Works Department if 18 posts of Assistant Engineer are kept in abeyance in the department and 18 such posts of Assistant Engineer are created in the Commercial Tax Department. The petitioners on the....
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....ne mode of recruitment. By means of counter affidavit, it has been brought on record that the Commissioner, Commercial Tax Department had not on its own passed the order dated 27.06.2008. In fact, he had been authorized to do so by the State Government itself vide its order dated 27.08.2007. The counter affidavit further states that the Trade Tax had taken Assistant Engineers and Junior Engineers from the Public Works Department and Irrigation Department only for the short period of time under specified conditions of service/ posting. The Service Rules, 1983 envisage only two modes of recruitment on the post of Assistant Commissioner. The direct recruitment is to be done on 50% of posts and remaining 50% are to be filled by promotion from the Trade Tax Officers, through Public Service Commission. Since the petitioners were working as Assistant Commissioners for verification purposes only and were mainly attached to the Check Posts, Mobile Squads and Special Investigation Branch. The work in such branches reduced due to the imposition of the VAT. The posts of Assistant Commissioners created by the government vide its order dated 10.06.2008 were mainly with respect to assessment an....
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....incipal Secretaries of Department of Personnel, Irrigation, Tax and Registration, Secretary Finance, Commissioner Commercial Tax, Special Secretary, Public Works Department, Special Secretary, Tax & Registration and Additional Legal Remembrancer to the Government of U.P. and after consideration of various issues the High Level Committee chaired by the then Chief Secretary again decided that the petitioners as well as all the employees of Public Works Department and Irrigation, who were posted on transfer of service basis in the department of Commercial Tax had to be repatriated to their parent department. Sri Kalia, learned Senior Advocate while arguing the matter submitted that the decision taken in the meeting dated 11.05.2010 was in fact no decision at all. It is was a reiteration of earlier stand of the respondents on the ground that the service Rules, 1983 did not envisage any procedure of merger or absorption of any employees substantively appointed in other departments. Sri Kalia vehemently submitted that the State Government can very well amend the rules as it had done so earlier and provide for absorption of the petitioners. Of course, the views of Public Service Commissi....
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....de Tax Officers Grade-II were to be posted along with the clerical staff, stenographers and other class-IV employees. The incumbents would be such employees as were made available by the Public Works Department and Irrigation Department due to disbanding of various divisions. It was also decided that as per rules, transfer of service within the government did not require any option to be taken from the employee concerned. However, it would be worthwhile to take various Unions into confidence by circulating a proposal and invoking their cooperation in the matter. Also a uniform principle regarding nomination of the employees by the administrative department was formulated so that only junior most employees be sent and there could not be any allegation of pick and choose. The Finance Department expressed its opinion that corresponding number of posts be created in the Trade Tax Department for employees who are being lent to it. However, this was not done and the posts continued to be in the parent department, where the lien of these employees is still maintained. Only the budget allocation/ adjustment regarding payment of salary and other allowances has been done on yearly basis. Th....
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....8, which alone has been challenged. Smt. Sangita Chandra, learned Additional Chief Standing Counsel appearing on behalf of the respondents submitted that as is evident from bare perusal of the minutes of meetings dated 12.01.2000 and 13.04.2000 and consequential issuance of government orders dated 23.08.2000 and 29.09.200, the service conditions prescribed by the State Government were clear. There is no such thing as 'deputation' from one government to another government department. The deputation is usually resorted to when services of an employee are lent to Public Sector Undertakings/ Government Company etc. The deputation allowance is paid as per the provisions of the Financial Hand Book in such cases. Transfer of service is resorted to when employees are needed in one government department and another government department is in a position to lend such employees. It is also submitted by Smt. Chandra that the option signed by the various Assistant Engineers on 25.05.2001 regarding service conditions for transfer of their services would clearly show that such transfer of service was accepted with the open eyes by the petitioners. The petitioners knew that their services could ....
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.... of 321 vacancies of Assistant Commissioners in the department, a requisition for direct recruitment of 291 Assistant Commissioners has already been sent to the U.P. Public Service Commission. The remaining 27 vacancies are to be filled up by promotion quota also through selection by Public Service Commission under the rules. If the petitioners are absorbed at this stage in the Commercial Tax Department, various anomalies would result with regard to fixation of seniority and consequential promotion etc. with regard to both direct recruits and the promotees in the Commercial Tax Department itself. In response to the submission of learned counsel for the petitioners that the amendment to the Trade Tax Rules, 1983 can very well be done by the government as it had been done earlier with regard to the Trade Tax Officers Grade-I recruited from the limited departmental examinations held in the year 1997, it was pointed out that the notices circulated amongst the departmental candidates with respect to limited departmental examinations for the recruitment of Trade Tax Officers Grade-I clearly shows that the limited departmental examination was open for the ministerial cadre to those perso....
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....the case of Inder Singh (supra) the respondent therein had worked for nearly 20 to 28 years in the C.I.D. and, therefore, the Hon'ble Supreme Court suggested that since the nature of work in the police department as well as the C.I.D. was almost similar and the respondents-petitioners therein had earned considerable experience working in the C.I.D., the government could consider the absorption of such employees. However, the caveat was that the rules permitted such absorption. The Hon'ble Supreme Court observed that the authority competent to decide whether an assignment is of deputation is the authority which controls the service or the post from which such employee is transferred. In the case of Mahesh Kumar K. Parmar & others vs. S.I.G. of Police & others reported in 2002 (9) SCC 458, the Hon'ble Supreme Court observed that the case of certain Head Constables of the Gujarat Police who were drafted into the Intelligence Bureau which was set up as separated organization by the State Government. They continued for long in the Intelligence Bureau even after rules were framed separately for recruitment, service conditions etc. of the Intelligence Bureau. Then they were repatriated t....
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....and was closed down. The respondents had already became employees of the Joint Venture Company and they had lost their lien in the original company, appellant -Tanmag. The respondents filed a writ petition for being absorbed in Tanmag. The learned Single Judge dismissed the writ petition. However, the Division Bench allowed the appeal on the submission made by the respondents that they are entitled to be taken back in Tanmag in terms of the earlier transfer order, which protected the service conditions of the respondents. The division Bench lost sight of the vital fact that there was a permanent transfer of service entailing loss of lien. On the basis of vague arguments advanced regarding legitimate expectation, the Division Bench allowed the appeal filed by the respondents. The Hon'ble Supreme Court observed that "the Division Bench in its anxiety .... to help the respondents .... seems to have stretched the principle of promissory estoppel beyond tolerable limits. Undoubtedly, while exercising extraordinary original jurisdiction under Article 226/227 of the Constitution of India the High Court ought to have come to the rescue of those who are victims of injustice, but not at the....
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....e State Government dated 27.08.2007 has not been challenged. In the case of Government of Maharashtra vs. Deokar's Distillery reported in 2003 (5) SCC 669 the Hon'ble Supreme Court has held that when writ petitions are filed challenging only consequential orders without challenging the original orders by which the cause of action arose, such writ petitions deserve to be dismissed as not maintainable. On 04.07.2008, this Court issued interim directions directing the authorities to allow the petitioners to work on the post on which they were working prior to passing of the impugned order. From July, 2008 onwards the petitioners continued to serve as Assistant Commissioner, Trade Tax on the basis of said interim order and, therefore, no right can be said to have accrued to the petitioners due to long service rendered in the Trade Tax Department. The petitioners were appointed as Assistant Engineer in P.W.D. through selection by the U.P. Public Service Commission in the year 1999 and continued to work in P.W.D. till 2001 i.e. for three years. Thereafter, they were deputed to work in the Trade Tax Department in the verification cell from 2001 onwards. The government finally decided tha....