TaxTMI 
TaxTMI 
2011 (4) TMI 1518
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.... 5 18850 of 2009 B. Kaliyamoorthy 6 18851 of 2009 K. Ramji 7 18852 of 2009 E. Andiyappan 8 18853 of 2009 S. Paramasivan 9 21448 of 2009 R. Panneerselvan 10 21449 of 2009 A.C. Venkatesan 11 21450 of 2009 G. Banumathi 12 21451 of 2009 S. Kethareswara Prasad 13 21452 of 2009 S. Banumathi 14 21453 of 2009 R. Sivaramalingam 15 21454 of 2009 S. Elangovan 16 21455 of 2009 S. Lalitha 2. The prayer made in all these writ petitions is issuance of writ in the nature of certiorari to quash the order passed 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. 3. The impugned order is passed in pursuance to the judgment of the Hon'ble Supreme Court in Civil Appeal No. 1454 of 1987 decided on 10.10.1999. 4. The state of Tamil Nadu had published the provisional seniority list of Assistant Commercial Tax Officer in the year 1985. The seniority list was challenged before this Court on the ground that the regular rule for fixing the seniority was not fol....
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....this Court, should also be considered for the purpose of fixing the seniority and they should not be omitted out of consideration. 11. The stand of the State was also that temporary appointment to a permanent post was different from regular appointment to a temporary post. 12. 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 to comprised not only permanent posts, but also temporary posts. 13. The Hon'ble Supreme Court taking note of the fact that the State Government had not placed any record before this Court to dispute the contentions of the writ Petitioners in the writ petitions that the transferee appointees were appointed only under Rule 10(a)(i) or 39(a) of the General Rules. These rules relate to temporary stopgap arrangements 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. 14. The Hon'ble Supreme Court therefore followed the well settled law that the Rules do not confer any right to the appointee, to claim seniority ov....
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....ecretariat. 19. 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. 20. The Hon'ble Supreme Court also took note of the fact that no material was placed to show that cadre comprised both of permanent and temporary posts. 21. The Hon'ble Supreme Court affirmed the judgment passed by this Court. The Hon'ble Supreme Court also held that as per the chart placed before the Hon'ble Supreme Court from the year 1972 to 1997, there were only 271 permanent posts as against 422 posts were shown as temporary. In the year 1997, 1080 posts were shown as temporary out of total 1351, and that no other figures were given for the year 1973 and 1974. 22. 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. The Hon'ble Supreme Court therefore concluded that if there was increase in the cadre strength from year to year, as contended there ....
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....the prayer made in the writ petition, in the affidavit, the stand of the Petitioner is that the judgment of the Hon'ble Supreme Court was on account of State Government's failure to prove the facts, in support of its case, before the Hon'ble Supreme Court which resulted in dismissal of the appeal. 31. The reference is also made to another case; i.e. challenge to the Government order in Proc. No. P1/16546/1999, dated 21.07.1999 which was set aside by the erstwhile Tamil Nadu Administrative Tribunal vide order dated 7.6.2000 in O.A. No. 5745 of 1999. 32. The stand of the Petitioner is that the State Government there also failed to prove before the Court, that the cadre strength of A.C.T.Os. included temporary posts by producing Government orders, vide which the posts were sanctioned. 33. 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. 34. This case was subsequently withdrawn. Reference was also made to the contempt case filed before the Hon'b....
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.....O. Similar treatment has been given to some other persons also who were appointed prior to the persons who have been now shown as senior in the cadre of A.C.T.O. 43. In support of the plea that the cadre strength of A.C.T.O. includes 1038 temporary posts, reliance is placed on G.O.Ms. No. 1374 CT and RE Dept., dated 28.10.1988. The Petitioner also pleaded that the appointment of the Petitioner to the post of A.C.T.O. was not fortuitous or ad hoc or as a stopgap arrangement, as he was appointed from the list of approved candidates drawn by the competent authority and he was working without break as A.C.T.O. ever since his appointment, till his promotion as Commercial Tax officer. 44. The averments is also made, that in case the appointment of the Petitioner is really temporary, he would have been replaced from that post by an approved candidate under Clause (iii) of the Sub-rule (a) of Rule 10 of the General Rules in Part II of the Tamil Nadu State and Subordinate Service Rules, nor he could have been promoted to next higher post. The Petitioner also pressed into service in law of the "Doctrine of Legitimate Expectation". 45. In the counter filed by the Respondents 3 to 7,....
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.... Hon'ble Supreme Court to object to any order by the State in implementing the order in individual cases, but this liberty does not give any right to reopen, the question, which already stood concluded by the Hon'ble Supreme Court. 51. The second Respondent also filed a counter wherein the only contention raised is that the impugned order of seniority has been passed in terms of the order passed by the Division bench of this Court as affirmed by the Hon'ble Supreme Court. The prayer is to vacate the interim injunction and also for dismissal of the writ petition. 52. In support of the writ petition, Mr. S.P. Asokan, learned Counsel for the Petitioners vehemently contended that the Petitioner was regular appointee to the post of A.C.T.O. 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 claim of all eligible candidates. Therefore, his appointment was not temporary or by way of stopgap arrangement. 53. The learned Counsel for the Petitioner further contended that in view of his regular appointment, he availed three promotions, but now in the impugned seniori....
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....009 filed by Tvl.N. Govindan, High Court of Madras in its order reference 20th read above, directed to pass orders on the proposal of Commissioner of Commercial Taxes sent in letter No. V1/66439/03, dated 30.4.2003 within the period of twelve weeks from the date of receipt of copy of the order. 2. The Principal Secretary and Commissioner of Commercial Taxes has sent the copy of the proposal of the commissioner of Commercial Taxes wherein it has been requested to pass orders for the permanent retention of the 2217 temporary posts which were created and continued in the Government orders 1 to 18 read above. 3. The Government have examined the proposal of the Principal Secretary and Commissioner of Commercial Taxes based on the direction of the High Court of Madras in the reference 20th read above and decided to accept it. The conditions stipulated for permanent retention of temporary post in G.O.Ms. No. 1368 Finance (E II) Department dated 4.11.1963 and G.O.Ms. No. 397/Finance (salary) Department dated 4.6.1991 are satisfied in this case. 4. The Government have therefore, direct that the posts mentioned in the Annexure to this order originally sanctioned in....
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....lso the contention of the learned Counsel for the Petitioner that this Court should lay down criteria of seniority to fill up the lacuna. 63. This contention again cannot be accepted as it is well settled principle of law that in the absence of rule of seniority, the length of service is to be taken as criteria, provided appointment is to a cadre post. 64. The contentions raised deserves to be rejected as this Court laid down criteria for fixation of seniority of A.C.T.O., which stands upheld by the Hon'ble Supreme Court. 65. The contention of the learned Counsel for the Petitioner that this criteria laid down was to apply only to person selected upto the year 1981 and not thereafter, cannot be accepted, as the principle of law laid down would be binding, even for the subsequent period. 66. The contention raised by the learned Counsel for the Petitioner also stand answered by Rule 3(a) of the General Rules which reads as under: 35(a) Seniority - The seniority of a person in a service, class or category or grade shall unless he has been reduced to a lower rank as a punishment be determined by the rank obtained by him in the list of approved candidates drawn ....
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....etitioners; firstly, for the reason that the Petitioners herein were not parties to the proceedings and secondly, for the reason that the decision of the Hon'ble Supreme Court is based on the failure of the State Government to place true facts before the Hon'ble Supreme Court. 70. This contention of the learned Counsel for the Petitioners again deserves to be noticed to be rejected, as this Court cannot sit over the judgment of the Hon'ble Supreme Court especially when nothing has been placed on record showing that the cadre of A.C.T.O. consists of substantive posts and temporary posts. 71. It was also contended by the learned Counsel for the Petitioner that in the impugned order different criteria has been adopted while fixing the seniority, i.e. in the case of direct recruits, the date of seniority has been fixed from the date of commencement of probation, whereas in the case of transferee, date is fixed from the date of vacancy in the permanent post. 72. This contention of the learned Counsel for the Petitioner again deserved to be noticed to be rejected. The direct recruits were appointed against the substantive vacancies whereas transferees were appointed ....
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....d reliance on the judgment of the Hon'ble Supreme Court in the case of S.B. Patwardhan and Ors. etc. v. State of Maharashtra (AIR 1977 SC 2051) wherein Rule 8(3) of Rules of recruitment to Bombay Service Rules were ordered to be struck down. 78. The Hon'ble Supreme Court by holding that the Rule 8(3) to be bad, held that: There is no universal rule, either that a cadre cannot consist of both permanent and temporary employees or that it must consist of both.' That is primarily a matter of rules and regulations governing the particular service in relation to which the question regarding the composition of a cadre arises. For example, in Bishan Sarup Gupta v. Union of India (1) the cadre of Income Tax officers Class I, Grade II was held by this Court to consist of both permanent and temporary pests. Similarly, 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 recr....
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....ed for years on end shows that the work assigned to the holders of those posts was, at least at some later stage, no longer of a temporary nature. And yet, instead of converting the temporary posts into permanent ones, the authorities slurred over the matter and imperiled, though unwittingly, the reasonable expectations of the promotes. Wittingly' because, no one appears to have been interested in belittling the contribution of the promotes who held temporary posts in the Service or in consciously jeopardising their prospectus. The tragedy is that no one was interested in anything at all. Or else, why was direct recruitment not made from time to time, at regular intervals? If that were done, the undesirable situation which confronts us today could have 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 promotes in the ratio of one to two. In these circumstances, it will be wholly unjust to penalise the promotes for the dilatory and unmindful attitude of the a....
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.... (a) by or under any law for the time being in force; or (b) in respect of any member of such service by a contract or agreement subsisting between such member and the State Government. 2. Relation to the special rules-If any provision in the general rules contained in this part is repugnant to a provision in the special rules applicable to any particular service, contained in part III, the latter shall, in respect of that service, prevail over the provision in the General Rules in this part. 10. Temporary appointments: a(i) (1) where it is necessary in the public interest owing to an emergency which has arisen to fill immediately a vacancy in a post borne on the cadre of a service, class or category and there would be undue delay in making such appointment in accordance with these rules and the Special Rules, the appointing authority may temporarily appoint a person, who possesses the qualifications prescribed for the post otherwise than in accordance with the said rules. (Added Vide G.O.Ms. No. 21, P and AR (S) Dept., 23-196 w.e.f. 23-1-96) Provided that no appointment @ by direct recruitment under this clause shall be made of any pers....
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....vice, class or category. The services of a person appointed under Clause (i), (ii) or (iv) shall be liable to be terminated by the appointing authority at any time without notice and without any reason, being assigned. (b) and (bb): Omitted. (Vide G.O.Ms. No. 21, P and AR (S) Dept., dt.23-1- 96 w.e.f. 23-1-96) (c) A person appointed to any part-time post created in lieu of a whole time post borne on the cadre of a service, class or category shall not be regarded as a probationer in such service nor shall be entitled by reason only of such appointment to any preferential claim to future appointment to such service, class or category. (d) Notwithstanding anything contained in these rules, if and when a temporary post is created as addition to the cadre of any service, class or category and the holder thereof is required by the State Government to possess any special qualifications, knowledge or experience, any person who possess such qualifications, knowledge or experience and is considered to be best the fitted to discharge the duties of such post may, irrespective of other considerations, be appointed to that post by the appointing authority, but....