TaxTMI 
TaxTMI 
2020 (11) TMI 684
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....rectly recruited as Group-I Commercial Tax Officers (CTO) [now re-designated as Assistant Commissioner(AC)], which is the promotion level post in the Subordinate Services of the Commercial Taxes Department, and are currently in the post of Joint Commissioners/Deputy Commissioners. The private Respondent, in each writ appeal, was directly recruited as a Group-II Officer in the post of Assistant Commercial Tax Officer (ACTO)[now re-designated as Deputy Commercial Tax Officer(DCTO)], which is the entry level post in the Subordinate Services of the Commercial Taxes Department, and were in the post of Joint Commissioners/Deputy Commissioners when the writ petitions were filed. From the post of CTO, the next promotion is to the entry level post of AC in the State Service followed by the promotion posts of Deputy Commissioner (DC), Joint Commissioner (JC) and Additional Commissioner (ADC). Recruitment to the entry level post of ACTO (now DCTO) in the 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....
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....ority should be determined with reference to the date of their joining as Joint Commercial Tax Officer, and 3) The date on which an Officer commences probation is the proper criterion for fixing the inter se seniority. 4) If there are vacancies out of the required reservations of 40% in the permanent cadre of A.C.T.O. for direct recruits, any appointment made either by transfer or by promotion cannot be utilized to fill up those vacancies. Such appointment 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 are taken out of the 40% posts reserved for direct recruitment." 3. Contempt Petition No.263 of 2007 was filed in respect of the alleged wilful disobedience of the aforesaid order of the Supreme Court. While the Contempt Petition was pending, the State Government 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 ....
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....ices Rules. In the said writ appeal, the State Government filed additional counter affidavits. In paragraph 11 of the additional counter affidavit dated 01.12.2015, the deficiencies in the inter se seniority list was admitted and this was cited as the reason for the formation of a High Level Committee. In both the counter affidavits, the State Government took the position that it had made regular appointments both to temporary and permanent posts, which together constitute the cadre strength for promotion purposes. Indeed, in the additional counter affidavit dated 01.03.2016, the Supreme Court's judgment dated 10.02.1999 was interpreted as merely giving precedence in seniority to permanent post holders and not as rendering the temporary posts irregular. In that context, in paragraph 20, the Division Bench of this Court by order dated 31.08.2016, once again, referred to the proceedings before the Hon'ble Supreme Court 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 t....
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....that were adopted by the Division Bench of this Court and affirmed by the Hon'ble Supreme Court. However, the State Government was advised to await the order in one writ appeal which was de-linked from this batch. The reason for de-linking the said writ appeal was that the said writ appeal, namely, W.A. No.2280 of 2011, was filed by the promotees/transferees from the Ministerial Service, whose dispute was with the Group II direct recruits, such as the private Respondent in each writ appeal. This writ appeal related to the Proceedings dated 04.05.2009 whereby the inter se seniority list of ACTO's and the relief prayed for was to re-draw the seniority list by including in that list all transferees appointed temporarily or permanently in accordance with General Rule 35(aa) of the Tamil Nadu State and Subordinate Services Rules. According to Mr.Ravi, this writ appeal did not concern the Appellants herein and, 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 princ....
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....ed by the Hon'ble Supreme Court and also without conforming to Rule 35(aa). On that basis, the State Government stated that it proposes to rectify the seniority list so as to set right the anomaly in the earlier Government orders. He also pointed out as to how the State Government had taken the categorical stand that the preparation of the seniority list was left open in the order dated 31.08.2016, wherein only the request of the transferees to consider temporary posts also while reckoning inter se seniority was rejected, whereas the seniority lists were required to be prepared in terms of the earlier order dated 28.07.2016 in the batch of cases. Unfortunately, the State Government has thereafter not filed an appeal against the order of the learned single Judge wherein, at paragraph 38, directions that are adverse to the decision of the State Government, as stated in the counter affidavit, were issued. 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. Inst....
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.... 12. In spite of the said judgment of the Division Bench of this Court, Mr.Prakash submitted that the State Government took measures to constitute a High Power Committee to revise the seniority list in a manner contrary to the judgment of the Hon'ble Supreme Court and that of the Division Bench of this Court. Therefore, the private Respondents herein were constrained to file three writ petitions. In the said writ petitions, the learned single Judge concurred with the contentions of the Respondents and concluded at paragraph 38 of the judgment that the seniority list placed before the Hon'ble Supreme Court should not be deviated from. He also pointed out that a review petition was filed against the judgment dated 31.08.2016 in W.A. No.2280 of 2011 and the said review petition was dismissed on 26.07.2019 at the SR stage. Therefore, he submitted that the writ petitions were not frivolous 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 ....
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....e to step down as and when regular appointments by direct recruitment are made. The contention of the learned Advocate General and also of Mr.S.Ramalingam, learned counsel for respondents 3 to 29 that even though the officers appointed under rule 10(a) (1) or 39(a) of the General Rules, for the purpose of seniority their probation commences from the date of their first appointment cannot be accepted. A conjoint reading of rules 2(1) to (3) of the preliminary Rules along with rules 6 to 8 of the General Rules (which have already been set out above) will clearly show that the officers temporarily appointed by recruitment by transfer to fill up the vacancy caused in the reserved category of direct recruitment cannot commence probation earlier than those who are regularly recruited through service Commission directly as A.C.T.O.'s even though at a later point of time. We hold that in 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. Su....
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....e principles now formulated that the A.C.T.O.'s bearing S.Nos. 129 to 519 in the impugned seniority list can be placed above the petitioners in 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 petitioners commenced their probation. Such of those who do not comply with the above requirement must be placed below the petitioners in the inter se seniority list." 17. Against this backdrop, the first question that arises for consideration is whether the Division Bench of this Court by order dated 28.07.2016 in the batch of about 59 cases restrained the State Government from revising the seniority lists or imposed fetters in that regard. In order to answer this question, it is necessary to examine the order of the Division Bench closely. The said order is, therefore, set 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....
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....rvation of 20% in the permanent cadre of A.C.T.Os. 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 are taken out of the 40% posts reserved for direct recruitment. 5.The matter has got largely simplified also by the statement made by the learned Advocate General on behalf of the State Government on 26.07.2016. We extract the order as under: ''The learned Advocate General states that he has obtained instructions to clarify the position in view of the arguments already addressed before this Court. 2. He states that as per his instructions, 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 ....
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....said agreed arrangement, we dispose of the writ appeals and the writ petitions with the direction to the State Government to initially wait for our pronouncement in respect of the writ appeal aforesaid and thereafter, proceed to act in terms aforesaid or begin de novo depending on the fate of the writ appeal referred above. It is clarified that anything to the contrary which may have been observed by the learned Single Judge would not hold good. 9.Writ appeals and writ petitions are disposed of. No costs. Consequently, connected miscellaneous petitions stand closed." Upon perusal of the aforesaid judgment, it is clear that the Division Bench set out the four principles that were adopted by the Division Bench of this Court in W.P. 12786 of 1975 and affirmed by the Hon'ble Supreme Court in paragraph 4 thereof. In addition, in paragraph 5, the 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 yea....
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....re as under: "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 persons recruited by transfer from among the Assistants and Gujarathi knowing Assistants employed in the Commercial Taxes Department and 10% of the 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 bo....
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....es and Registration (A2) Department, dated 31.03.2015, have to be considered. Further, the seniority list placed before the Hon'ble Supreme Court has been agreed to by all the parties concerned, and hence there cannot be any deviation with regard to the promotions subsequently claimed 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 ca....