TaxTMI 
TaxTMI 
2020 (2) TMI 1379
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....re this Court and challenged the validity of the inter se seniority list published by the department. The issue that was raised before this Court was that the post of ACTO can be filled up under the Rules both through direct recruitment and by transfer from among the Assistants working in the Commercial Tax Department or in the Sales Tax Appellate Tribunal or in the Commercial Tax Branch of the Board of Revenue or the Revenue Department of he Secretariat. The Rules provided that 40% of the vacancies must be filled up by direct recruitment through TNPSC and 60% must be filled up by transfer. This post fell under the Subordinate Service and the next avenue of promotion is to the Post of Deputy Commercial Tax Officer. In the process of recruitment, the percentage of recruitment by way of transfer went beyond the percentage stipulated under the Rules and the candidates, who were brought in beyond the stipulated percentage were kept on a temporary/ad hoc basis. Simultaneously, the direct recruits also started coming in. The inter se seniority list was prepared and in the said list, even the temporary/ad hoc candidates, who were brought in through transfer, were also added and there was ....
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....ry of D.C.T.Os. and A.C.T.O.s. was the Commercial Tax (Composite Division) in the State. There were sour such divisions till G.O.Ms.No.679, C.T. & R.E. dated 29.7.1980 was passed. By the said G.O., the Government have directed that one unit system be introduced at the State level for the members of the Tamil Nadu Commercial Taxes Subordinate Service, namely, D.C.T.Os. and A.C.T.Os. It is for implementing the scheme, a combined ad hoc seniority list of A.C.T.Os. and also four select lists of D.C.T.Os. for the years 1982 to 1985 had been prepared by the second respondent. All these lists are under challenge. The grievance of the direct recruit petitioners is, that the transferee candidates promoted temporarily as A.C.T.Os. had been placed above them in the impugned seniority list of A.C.T.Os. arbitrarily and contrary to rules. They also challenge the select lists of D.C.T.Os. for the years 1982 to 1985 consequently. 12.It is seen from the above extracts that the impugned State inter se seniority list of A.C.T.O.s has been prepared on the basis of the first appointment as A.C.T.Os. without regard to the year of selection and following the principle formulated in the judgment of thi....
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....placing transference officers holding the same during the interregnum of the vacancy causar by reason of retirement, death, resignation or promotion of the directly recruited permanent holders of that post. It is to be remembered that under rule 2 (b) of the Special Rules (vide supra), at the relevant time, 40% of the substantiate vacancies in the cadre of A.C.T.Os. was reserved for direct recruitment. If that be so, can that vacancy be filled up in any other manner except by direct recruitment? The obvious answer will be in the negative. In this connection, it is relevant to refer to rule 10(a)(1) and 39(a) of the General Rules which have already been set out. Any filing up of the vacancies except by way of direct recruitment to the reserved 40% category, for any reason, whatsoever, must be only by invoking rule 10(a)(i) or 39(a) of the General Rules. 14.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 are the transferees were from the service of the Ministerial Service to a Subor....
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....rmanent 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 requirement. 23.In the light of the discussion, the impugned seniority list of A.C.T.Os. has to be revised. It is seen from 3.Nos. 129 to 519, the placements are given to transferee A.C.T.Os. belonging to either 50% reserved category or 10% reserved category. It follows from the principles now formulated that the A.C.T.Os. bearing S.Nos.129 to 519 is the impugned seniority list can be placed above the positioners 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 positioners commenced their probation. Such of these who do not comply with the above requirement must be placed below the petitioners in the inter-se seniority list. 24.In....
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.... that the transferee appointees were appointed only under Rule 10(a)(1) or 39(a) of the General Rules. Those two Rules relate to temporary stop gap arrangements which can be made in cases of emergency. They are intended to meet an immediate necessity so that the administration may not suffer and in such cases, the appointments are not made in accordance with the Rules but they are made de hors the Rules It is well settled and not in dispute that neither of the Rules confers any right on the appointee to claim seniority over others who were regularly appointed though later in accordance with the relevant Rules. 6.Again the High Court has pointed out that the transferees, who could not be accommodated in the quota reserved for them, could not claim seniority over direct recruits as and when such direct recruits are to replace them. After referring to the judgment of this Court in P.S.Mahal .vs. U.O.I. reported in A.I.R. 1984 SC 1291, the High Court observed that those officers who were temporarily promoted by transfer will have to step down as and when regular appointments by direct recruitment are made. 7.In this Case, a tabular statement was placed before the High Court which....
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....n the appeal. It is accordingly dismissed. No costs. The Hon'ble Supreme Court in the above judgment completely concurred with the judgment of the Division Bench. 5.Even after the judgment of the Division Bench was affirmed by the Hon'ble Supreme Court, the Government and the Commercial Tax Department did not publish the fresh seniority list and therefore, a Contempt Petition was filed before the Hon'ble Supreme Court. During the pendency of the Contempt proceedings, taking into consideration the long delay, the Hon'ble Supreme Court directed the department to publish a fresh seniority list in terms of the directions given by the Hon'ble Supreme Court in C.A.No.1454/1987. 6.The orders passed by the Hon'ble Supreme Court ultimately resulted in the department publishing the seniority list on 04.05.2009. This seniority list covered the period from 1968 to 2006. 7.The above seniority list was again put to challenge before this Court in W.P.No.11618 etc., of 2009, by the promotees from the ministerial services. They raised the contention that the temporary post should also reckoned as part of the cadre strength, for the fixation of inter se seniority. Al....
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....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 reservation 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 cann....
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.... as a temporary measure, the promotees who are awaiting promotion and may be nearing retirement should be permitted to be promoted against the post of direct recruits. We are afraid that this is something which we cannot permit because this is exactly what has created the controversy in the past. 8.In view of the aforesaid 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 nova 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. 11.From the above judgment, it is clear that the directions issued by the Court to the Government will be kept in abeyance till the final judgment is passed in W.A.No.2280 of 2011 and depending upon the result in that appeal, the directions can be implemented. 12.The Division Bench considered W.A.No.2280 of 2011 and passed a judgment on 31.08.2016, dismissing the appeals. The Writ Appeal was dismissed with the f....
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....e contempt proceedings and which was agreed by all the parties cannot be revised or reopened again. It was brought to the notice of this Court that this judgment of the Division Bench has been taken on appeal before the Hon'ble Supreme Court and the same is pending. 14.In the meantime, Government orders were passed publishing the seniority list in the cadre of Assistant Commissioners, Deputy Commissioners and Joint Commissioners in G.O.Ms.No.116, dated 24.08.2012, G.O.Ms.No.139, dated 02.11.2012 and G.O.Ms.No.16, dated 27.02.2013, respectively. 15.Before getting into the issue that is involved in the present writ petition, it must be borne in mind that the post of ACTO was later re designated as Deputy Commercial Tax Officer by virtue of G.O.Ms.No.71, dated 30.07.2008. This falls under the Subordinate Service. Earlier, the State Service consisted of the post of Commercial Tax Officer, Assistant Commissioner, Deputy Commissioner and Joint Commissioner. From the year 2008, the post of Commercial Tax Officer was re designated as Assistant Commissioner. Therefore, now the State service starts from the post of Assistant Commissioner and the next promotion is to the post of the....
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....positions and for a direction to promote the petitioners as Additional Commissioners in the 2015 panel. Out of the two writ petitioners, the petitioner in W.P.No.5254 of 2018, retired from service during the pendency of the writ petition in the post of Joint Commissioner. 19.Before venturing into the process of considering the submissions made by the learned counsel appearing on either side, it is important to ascertain as to how the department has understood the effect of the earlier orders passed by this Court and the effect of the earlier Government orders which fixed the inter se seniority. For this purpose, a reference can be made to the rejection order passed by the department on 20.12.2016, when one Palani approached the department and sought for revision of the inter se seniority. The rejection order is extracted hereunder: i) You have contended that the inter-se seniority fixation in the cadre of AC (CT) in State Service issued vide G.O.Ms.No.116, CT & R(E1) Dept, dated 24.08.2012 has to be revised in furtherance to Hon'ble HIgh Court dated 28.07.2016 and 31.08.2017. You are aware that the WPs filed by Group-I officers [W.P.No.18264 of 2013, 19683 of 2013] ....
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....tended that the Hon'ble Division Bench of the Madras High Court while dismissing the writ appeal (2280 of 2011 dated 31.08.2016) has directed to re-draw the inter-se-seniority from the cadre of AC onwards. On the contrary, the Hn'ble High Court has not mentioned the above contention raised by you. In fact, in the interim order dated 28.07.2016 quoted by you mentioning certain observations of the Hon'ble High Court in Para NO. 5 & 6 of the judgment dated 28.07.2016, thee is a clear direction that this would be subject to the outcome of the writ appeal No.2280 of 2011 and the Hon'ble High Court has also directed to proceed further only depending on the fate of the writ appeal, which was pending at that time. Subsequently, as the writ appeal was dismissed on 31.08.2016, the prayer of all the petitioners (transferees as well as Group-I Officers) found no favour of the Court. Hence, there is no direction to revise or revisit the inter-se-seniority from the cadre of AC(CT), as contended by you in your representation cited. The government have already issued orders for fixation of seniority for each year from the cadre of AC onwards, for the permanent vacancies ar....
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....o the fixation of inter-se-seniority issue were disposed and the orders of the government issued in G.O.Nos. mentioned in Para (iv) above were sustained, further course of action could be taken only if revised orders are passed by the Court on filing of further appeals, if any. 20.It is clear from the above reply given by the department that the department has perfectly understood the fact that the earlier orders passed by the Hon'ble Supreme Court and this Court has become final and therefore, the Government orders which fixed the inter se seniority have also become final and there is no scope for revising the inter se seniority lists which have already become final. 21. A counter affidavit has been filed by the respondents and the relevant portions in the counter affidavit is extracted hereunder: "9. This list was published on 04.05.2009 and was followed by seniority list in the promotion category of CTO. The consequential seniority lists in the State Service entry level post of AC and the promotional posts of DC, JC and ADC were also drawn and published. The contempt petitioners and other similarly placed direct recruit DCTOs were given consequential promotion....
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....ereafter. 12. A second additional counter affidavit appending a tentative seniority list for all categories of posts from DCTO to ADC for the years from 2007 to 2015 was filed in March 2016 praying for dismissal of the writ appeal to enable the department to publish the same. The department also prayed for hearing of all the connected cases as a batch. Accordingly, the Hon'ble High Court of Madras initially took up all the related cases except the main writ appeal WA No.2280/2011 and disposed them on 28.07.2016 recording a consensus order that the four principles affirmed by the Hon'ble Supreme Court would apply in relation to fixation of inter se seniority. The prayers in the respective writs and appeals were directed to be dealt with in terms of the decision to be taken in the main writ appeal WA No.2280/2011, viz., whether temporary posts too could be reckoned for fixation of inter se seniority. If this was answered in the affirmative, everything would go and the process had to be started afresh. If not, the four principles wee to be applied in relation to permanent posts alone and the prayers in these connected cases were to be answered accordingly. 13. The WA.No.....
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.....No.18264/2013 on the grounds that the said list was not in accordance with the aforesaid four principles confirmed by Hon'ble Supreme Court as well as General Rule 35(aa), as per which the date of appointment in the permanent cadre strength is the criterion for fixation of inter-se seniority between direct recruits and transferees in permanent posts in the cadre of AC. This fact, that General Rule 35(aa) will apply in this instance has been admitted to by the petitioner himself in paragraph 20 of his affidavit. Howsoever, he proceeds to claim that he is senior as per the extant seniority which is not on the basis of General Rule 35 (aa) but on the basis of an erroneously adopted Special rule 2(c) of the Special Rules for the Tamil Nadu Commercial Taxes Service pertaining to cyclical apportioning of permanent post vacancies for appointment by either method, vz., direct recruitment and transfer of service. (ii) In the G.O.Ms.No.116, CT & Regn.(E1) Dept. dated 24.08.2012, the Special Rule 2(c) of Tamil Nadu Commercial Taxes Service i.e., the ratio of 2:1 meant for setting apart the quota in permanent posts among the transferees and direct recruits has been followed erron....
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.... and the 2/3rd quota in permanent cadre strength meant for transferees had been left vacant with the legend 'No Candidate' despite availability of several transferees, which is fundamentally incorrect in a seniority list drawn up between persons already borne-in service i.e., when so many transferees occupying temporary AC posts are awaiting to occupy their transferee quota of permanent posts as and when vacancies arise for claiming seniority. 18.It is respectfully submitted in respect of the averments of the petitioner in paragraphs 16 to 20 of his affidavit, to the effect that none of the government orders relating to his seniority and consequential promotions were so far not challenged or set aside and that the department respondents are attempting to purposefully and willfully distort the orders of the Hon'ble High Court of Madras, that these averments are far from truth as had been laid bare in the preceding paragraph. There was specific challenge to the inter se seniority of AC drawn for 1984 to 2010 in G.O.Ms.No.116, CT & R Dept., dated 24.08.2012 in WP.No.18264/2013 which was addressed in the Hon'ble High Court of Madras orders dated 28.07.2016 in para 5(....
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....rative department concerned. It may thus be seen that except for the Vigilance Commissioner and the member of TNPSC, the composition of the High-Level Committee is identical to the statutory Committee on Appeals. Therefore, it is perverse on the part of the petitioner to allege that the committee has exceeded its brief. Thus, as aforesaid, the respondents have acted within their jurisdiction and have taken legitimate action at one go to address the issue in a fair, transparent and expeditious manner and to bring the entire seniority into consonance with both rule provisions and court orders consequently, there is no distortion of the Hon'ble High Court of Madras orders by the respondents as claimed by the petitioner. 19.It is respectfully submitted the respondents are not trying to unsettle a settled seniority. It may be seen from the specific wordings in the orders of the Hon'ble Supreme Court dated 04.03.2009 in Contempt Petition No.263/2007 that it clearly gave liberty to aggrieved individuals to represent against the lists in accordance with the statutory procedures. When this is done and the seniority is proposed to be rectified on the basis of such representation, ....
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....80 of 2011, dated 31.08.2016. ● Insofar as the writ petitions filed by the petitioners in W.P.No.9258 of 2018 and W.P.(MD).No.5254 of 2018, they are seeking for implementing 2015 panel for promotion to the post of Additional Commissioner which was even approved by the Hon'ble Chief Minister when the note file was circulated in January 2016 and which was later not acted upon. ● G.O.Ms.No.116, dated 24.08.2012 has become final and it has not been interfered by the Division Bench and therefore, all the consequential promotions based on that seniority cannot be attempted to be taken away and the petitioners cannot be allowed to be brought down in seniority in the subsequent promotion posts while moving into the State service. ● The apprehension raised by the petitioners has now come true by virtue of the stand taken by the official respondents in the counter affidavit. The respondents instead of submitting before the Court that they will proceed further with the preparation of the seniority list in line with the judgment of the Division Bench in W.A.No.2280 of 2011, are now attempting to give it an interpretation and thereby trying to ta....
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....#39;ble Supreme Court and this Government order has become final and therefore, the consequential fixation of seniority should be in line with this Government order. ● It is true that only the provisional seniority list is going to be published by the respondents. But however, the petitioners were forced to approach this Court since, there was already an earlier round of litigation which ultimately became final after a long drawn legal battle and now if the respondents again revisit the seniority lists, it will be going against the orders of this Court and the Hon'ble Supreme Court. That apart even at the earliest point of time, when the issue was raised before this Court in W.P.No.12786 of 1985, the Division Bench of this Court had actually interfered only with a provisional seniority list on the ground that it was going against the rules. Therefore, there is nothing wrong in the petitioners approaching the Court even at the time when the respondents are attempting to publish a provisional seniority list. That is the reason, why this Court even directed the respondents to produce the provisional seniority list in a sealed cover. ● The grievance is....
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....suing a writ of mandamus, there should be a corresponding statutory duty/legal duty which will arise only after the list is prepared and till then, a mandamus cannot be issued on mere assumptions and apprehensions. ● It is always left open to the Government to change its mind by taking into consideration certain facts and in this case, the counter reveals that the Government found that the existing seniority list has not been correctly drawn in the permanent cadre strength as per the four principles confirmed by the Hon'ble Supreme Court's judgment and in accordance with the service rules and therefore, Government thought it fit to publish the provisional seniority list and call for objections. This cannot be prevented by the petitioners and they cannot dictate the Government as to how the seniority list must be published. That apart, the Government only wants to revisit and publish the provisional seniority list from the year 2007 onwards since, what was produced before the Hon'ble Supreme Court only pertained to the seniority list for the period from 1968 to 2006 and this list remains untouched. ● The Division Bench of this Court made it ....
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....ntertained writ petitions in a case where even the provisional seniority list has not been published. It is also a settled law that writ petitions cannot be entertained on mere apprehensions. However, the present case falls under a special category. The litigation with regard to the present case had started nearly 35 years back and already it reached up to the Hon'ble Supreme Court twice and thereafter, before the Division Bench which ultimately made it clear that whatever has been settled before the Hon'ble Supreme Court will not be permitted to be re-agitated or reopened. Paragraph 20 of the judgment in W.A.No.2280 of 2011 has already been extracted supra and it makes the position very clear in no uncertain terms. In fact the Division Bench while passing the order on 19.06.1986, had interfered with a provisional seniority list since it found the list to be against the rules. 29.The learned Additional Advocate General has made it clear to this Court that the Government is not taking sides either with the direct recruits or with the transferries and the Government wants to implement the orders of this Court. The learned Additional Advocate General also made it clear that....
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....cruits and this anomaly is sought to be rectified by the Government. For this purpose, the Government wants to publish a provisional seniority list and this cannot be prevented by the petitioners. 31.The apprehension of the petitioners is that by doing this exercise, whatever benefits that have already enured to the transferries and which have been finalized by the earlier Division Bench in W.A.No.2280 of 2011, are attempted to be revisited. According to them, whatever is done, should not result in reopening or revisiting a settled seniority even in the consequential seniority in the State service. That is the reason why, the learned Senior Counsel appearing on behalf of the petitioners submitted that apprehension is not on the publication of the provisional seniority list. But the real apprehension is that an attempt is made to unsettle a seniority list that has already become final. 32.This Court also wanted to get a clarity on this issue from the side of the Government and therefore, it has directed the Government to send the provisional seniority list in a sealed cover and the same was also sent to this Court. Curiously the status of the petitioners in the provisional sen....
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....rity. Therefore, even where the transferries / promotees actually function in the promoted post (AC) at a later point of time, the seniority is reckoned from the date on which the seat becomes vacant. However, when it comes to direct recruits it is the date on which they have entered into service. Therefore, it is possible that the transferries / promotees in spite of getting into the promoted post at a later point of time, will find their place above the direct recruits in the seniority list. This is the result of the earlier proceedings which got concluded before the Hon'ble Supreme Court in the contempt proceedings. The official respondents have perfectly understood this consequence and in spite of it, they did not seek for any clarification before the Division Bench and the judgment of the Division Bench was not taken up on appeal. Therefore, the very basis on which the official respondents are seeking to revise the seniority list, will go against the judgment of the Division Bench in W.A.No.2280 of 2011 and it cannot be permitted by this Court. 36.The official respondents clearly understood the consequence of the judgment of the Division Bench and the same is evident fr....
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....f persons thus facing reversion asof April 2018 is eight (8). Of these, two of them were already being considered for inclusion in the temporary panel for promotion to the post of ADC (ST) for the year 2015. But, this panel was not given effect to in view of the admission to infirmities in the existing seniority lists and the consequent decision of the department to revisit them. Challenging this course of action, one of the two officials, Thiru. P. Sakthivel, JC (ST) has filed writ petition in WP (MD)No.5254/2018 praying for promotion as ADC (ST) which is still pending. It could be anticipated that further litigation could ensue on account of the other persons facing reversion. 6.When the lists were file before the Hon'ble Supreme Court, it was also submitted that consequential benefits would be given in accordance with law and the same had been given up to the level of JC (ST). Therefore, natural justice would demand that such benefit be not taken away on account of a process of revision considered necessary to rectify infirmities for which the individuals themselves could not be held responsible. Taking away the consequential benefits without putting them on notice is a....
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....s per existing seniority. He was one of the original petitioners in the contempt case no.263/2007 in CA No.1454/1987 filed before the Hon'ble Supreme Court. His prayer in the pending WP is to give him promotion as ADC on the basis of the note orders approved by the then Hon'ble Chief Minister for issue of the temporary panel of ADC for the year 2015. As already stated above, he and the other official, Thiru.S.Vijayakumar would have reached this level if the list had been calculated from 2011 instead of 2007. 11.To avoid or at least reduce further litigation on the issue of seniority,it isproposed that the note orders approved by the then Hon'bleChiefMinister be given effect to by promoting him as well as Thiru. S. Vijayakumar on ad hoc basis as ADC (CT) without reference to their seniority so that the whole issue is not reagitated on grounds of a technicality that the panel approved by the then Hon'ble Chief Minister was not given effect to. However, such promotion need not be given effective from 2015 since the panel itself has lapsed due to efflux of more than a year from its approval and also because the very same seniority is not going to be followed if....
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....y are required are as follows: Post No. of posts required Name of the officials for whom proposed Date of retirement ADC (ST) 2 Sakthivel P 31-Aug-2018 Vijayakumar S 30-Mar-2021 JC (ST) 6 Karunanidhi R 30-Apr-2018 Shanmuganathan R 30-Apr-2021 Sitrarasu P 31-Jan-2019 Jothinathan A 31-Jul-2018 Soundararaja Pandian D 30-Apr-2019 K.Sadhasivam 30-Apr-2018 37.From the above proposal, it is clear that insofar the Sakthivel and Vijayakumar are concerned, their names were included in the panel for promotion to the post of Additional Commissioner. This file was even circulated in September 2015 for the approval of the Hon'ble Chief Minister. It received the approval of the Hon'ble Chief Minister in January 2016. As per the business rules provided in Secretariat Office Manual, once the file receives the approval of the Hon'ble Chief Minister, the final orders will have to be issued within three days from the date of receipt of orders of the Hon'ble Chief Minister and in no case, it sho....