Karnataka High Court
M V Srinivasa vs Sri Siddalinga Murthy S/O Sri ... on 1 October, 2012
Bench: N.Kumar, H.S.Kempanna
1
IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 01ST DAY OF OCTOBER 2012
PRESENT:
THE HON'BLE MR.JUSTICE N.KUMAR
AND
THE HON'BLE MR.JUSTICE H.S.KEMPANNA
W.P.Nos.24998-25007/2009
&
W.P.Nos.25180-25183/2009 (S-KAT)
In W.P.Nos.24998-25007/2009
and
W.P.Nos.25180-25181/2009:
BETWEEN:
1. M V SRINIVASA
MAJOR,
STENOGRAPHER,
OFFICE OF THE DEPUTY
COMMISSIONER OF COMMERCIAL
TAXES, (Asst.) - 16,
BANGALORE CITY DIVISION - I,
BANGALORE.
2
2. SMT. SEETHALAKSHMI AMMAL
MAJOR, STENOGRAPHER,
OFFICE OF THE ASSISTANT
COMMISSIONER OF COMMERCIAL
TAXES, 14TH CIRCLE,
BANGALORE CITY DIVISION - I,
BANGALORE.
3. SRI B M KRISHNEGOWDA,
MAJOR, STENOGRAPHER,
OFFICE OF THE ASSISTANT
COMMISSIONER OF COMMERCIAL
TAXES, 16TH CIRCLE,
BANGALORE CITY DIVISION - I,
BANGALORE.
4. SRI N. SHIVAKUMAR
MAJOR, STENOGRAPHER,
OFFICE OF THE DEPUTY
COMMISSIONER OF COMMERCIAL
TAXES, (Asst) - 42,
BANGALORE CITY DIVISION - IV,
BANGALORE.
5. SRI LINGEGOWDA,
MAJOR, STENOGRAPHER,
OFFICE OF THE JOINT
COMMISSIONER OF COMMERCIAL
TAXES, (VIGILANCE),
BANGALORE.
6. SMT M.K.SUDHA,
MAJOR, STENOGRAPHER,
OFFICE OF THE JOINT
COMMISSIONER OF COMMERCIAL
TAXES, (VIGILANCE),
BANGALORE.
3
7. SMT M.K.VIJAYALAKSHMI,
MAJOR, STENOGRAPHER,
OFFICE OF THE KARNATAKA
APPELLATE TRIBUNAL,
M.S.BUILDING,
BANGALORE - 560 001.
8. SRI SHARADA K MURTHY
MAJOR, STENOGRAPHER,
OFFICE OF THE ASSISTANT
COMMISSIONER OF COMMERCIAL
TAXES, 19TH CIRCLE,
BANGALORE CITY DIVISION - II,
BANGALORE.
9. SRI P G DESHPANDE,
MAJOR, STENOGRAPHER,
OFFICE OF THE ASSISTANT
COMMISSIONER OF COMMERCIAL
TAXES, ATHANI,
BELGAUM.
10. SRI A.B. MALI PATIL
MAJOR, STENOGRAPHER,
OFFICE OF THE DEPUTY
COMMISSIONER OF
COMMERCIAL TAXES, (Int)
BELGAUM.
11. SRI P.S.KULKARNI,
MAJOR, STENOGRAPHER,
OFFICE OF THE ASSISTANT
COMMISSIONER OF COMMERCIAL
TAXES, (Int) BELGAUM.
4
12. SMT SARASWATHI S.BETAGEERI,
MAJOR, STENOGRAPHER,
OFFICE OF THE ASSISTANT COMMISSIONER
OF COMMERCIAL TAXES,
NANJANAGUD, MYSORE DIVISION,
BANGALORE.
... PETITIONERS
AND:
1. SRI SIDDALINGA MURTHY
S/O SRI SIDDALINGAIAH
WORKING AS STENOGRAPHER,
OFFICE OF THE ASSISTANT
COMMISSIONER OF
COMMERCIAL TAXES,
28TH CIRCLE,
BANGALORE CITY DIVISION - I,
BANGALORE.
2. SMT. A. VIJAYA,
W/O SRI B. LAKSHMINARAYANA
WORKING AS STENOGRAPHER,
OFFICE OF THE COMMISSIONER OF
COMMERCIAL TAXES,
22ND CIRCLE,
BANGALORE CITY DIVISION - I,
BANGALORE.
3. SMT. VANAJAKSHI
W/O SRI D. SIDDAPPA
AGED ABOUT 38 YEARS,
WORKING AS STENOGRAPHER,
OFFICE OF THE COMMISSIONER
OF COMMERCIAL TAXES (VIGILANCE),
BANGALORE.
5
4. SRI D.M. MANJUNATH
S/O LATE D. MUNIYAPPA,
AGED ABOUT 37 YEARS,
WORKING AS STENOGRAPHER,
OFFICE OF THE DEPUTY
COMMISSIONER OF
COMMERCIAL TAXES (Asst) - 14,
BANGALORE CITY DIVISION - I,
BANGALORE.
5. SRI S. ANANTHA PADMANABAHA
S/O SRI V. SAMPATH
AGED ABOUT 39 YEARS,
WORKING AS STENOGRAPHER,
OFFICE OF THE COMMISSIONER OF
COMMERCIAL TAXES (K),
BANGALORE.
6. SRI N. PRAKASHA
S/O SRI T. NAGESH SHASTRI
AGED ABOUT 35 YEARS,
WORKING AS STENOGRAPHER,
OFFICE OF THE COMMISSIONER
OF COMMERCIAL TAXES (K)
BANGALORE
7. SRI D. ANANTHA PADMANABHA
S/O SRI K.N.DASHARATHAPPA
AGED ABOUT 39 YEARS
WORKING AS STENOGRAPHER,
OFFICE OF THE ASSISTANT
COMMISSIONER OF
COMMERCIAL TAXES,
DIST.V ADDL.CIRCLE,
BANGALORE DIVISION.
6
8. SRI B.K. VISHWANATH
S/O SRI N. KRISHNAPPA
AGED ABOUT 37 YEARS
WORKING AS STENOGRAPHER
OFFICE OF THE COMMISSIONER
OF COMMERCIAL TAXES (VIGILANCE),
BANGALORE.
9. SRI V. RAMU S/O SRI H. VENKATAPPA
AGED ABOUT 39 YEARS,
WORKING AS STENOGRAPHER
OFFICE OF THE ASSISTANT COMMISSIONER
OF COMMERCIAL TAXES, 8TH CIRCLE,
BANGALORE CITY DIVISION - I, BANGALORE.
10. SRI D. NARAYANA S/O SRI DASAPPA
AGED ABOUT 35 YEARS,
WORKING AS STENOGRAPHER
OFFICE OF THE ASSISTANT
COMMISSIONER
OF COMMERCIAL TAXES,
I ADDL.CIRCLE,
BANGALORE CITY DIVISION - 3,
BANGALORE.
11. THE STATE OF KARNATAKA,
REPRESENTED BY ITS
PRINCIPAL SECRETARY,
FINANCE DEPARTMENT,
VIDHANA SOUDHA,
BANGALORE - 560 001.
12. THE COMMISSIONER OF COMMERCIAL
TAXES, VANIJYA THERIGE BHAVAN,
GANDHINAGAR, 1ST MAIN,
BANGALORE - 560 009
7
13. THE SECRETARY,
LAW DEPARTMENT,
GOVERNMENT OF KARNATAKA,
VIDHANA SOUDHA
BANGALORE - 560 001.
... RESPONDENTS
In W.P.Nos. 25182/2009 and 25183/2009:
BETWEEN:
1. SRI N SHIVAKUMAR,
MAJOR, CARE OF OFFICE
OF THE COMMISSIONER OF
COMMERCIAL TAXES IN
KARNATAKA,
VANIJYA TERIGE VIBAGA,
GANDHINAGAR, BANGALORE - 560 009.
2. SRI V.B.MALI PATIL,
MAJOR, CARE OF OFFICE
OF THE COMMISSIONER OF
COMMERCIAL TAXES IN
KARNATAKA, VANIJYA TERIGE VIBAGA,
GANDHINAGAR, BANGALORE - 560 009. ... PETITIONERS
(By Sri P.S.RAJAGOPAL, Sr.COUNSEL FOR
Sri T R SRIDHAR, Adv.)
AND:
1. SRI MELUGIRIYAPPA,
S/O VEERANNA,
AGED ABOUT 37 YEARS,
WORKING AS STENOGRAPHER,
8
OFFICE OF THE COMMISSIONER OF
COMMERCIAL TAXES, GANDHINAGAR,
BANGALORE - 560 009.
2. SRI S.SIDDAIAH,
S/O SIDDEGOWDA,
AGED ABOUT 35 YEARS,
WORKING AS STENOGRAPHER,
OFFICE OF THE JOINT COMMISSIONER OF
COMMERCIAL TAXES (Appeal),
MYSORE - 570 024.
3. SRI T.VENKATALAKSHMI,
D/O SRI B THIMMAIAH,
AGED ABOUT 35 YEARS,
OFFICE OF THE JOINT
COMMISIONER OF COMMERCIAL TAXES
(Appeals), CITY DIVISION - III, VIII FLOOR,
V.T.K.BUILDINGS, GANDHINAGAR,
BANGALORE - 9.
4. SRI R.SADASHIVA RAO,
WORKING AS STENOGRAPHER,
OFFICE OF THE DEPUTY
COMMISSIONER OF
COMMERCIAL TAXES
(ASSESSMENT -13),
CITY DIVISION - I,
GANDHINAGAR,
BANGALORE - 560 009.
5. THE COMMISSIONER OF
COMMERCIAL TAXES,
VANIJYA TERIGE BHAVAN,
GANDHINAGAR, 1ST MAIN,
BANGALORE - 560 009.
....RESPONDENTS
9
(By Sri RANGANATHA S JOIS, Adv.
FOR C/R1 & 6 TO 10;
Smt REVATHY ADINATH NARDE, HCGP FOR
R11 TO 13 & R18;
R2, R3, R4, F5 SERVED)
THESE WRIT PETITIONS ARE FILED UNDER
ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA
TO QUASH THE ORDER DT. 25.6.2009 OF THE
HON'BLE KARNATAKA ADMINISTRATIVE TRIBUNAL IN
APPLICATION NOS. 2280-2289/2002 C/W A.NO. 427-
430/2001 VIDE ANNEX-A.
These petitions coming on for orders, this day,
N.KUMAR, J., made the following:
ORDER
All these batch of writ petitions are taken up together, as the question involved is the same and therefore, they are disposed of by this common order.
2. For the purpose of convenience, the parties are referred to, as they are referred to in the applications.
10
3. The applicants joined services as Typists in the Commercial Tax Department. In course of time, they were promoted to the cadre of Stenographers. The private respondents were working in the Directorate of Prosecutions and Government Litigation coming under the Department of Law. In the Department of Law, the private respondents had avenue of promotion to the cadre of Typists. However, in view of the prescription of condition of passing of English Stenography for promotion from the cadre of Typists to that of Stenographers, the private respondents were ineligible for promotion. Respondent No.12 was working as Typist with the Law Department approached the Tribunal in Application No.436/1988 challenging the provisions of Karnataka Department of Prosecution and Government Litigation (Recruitment) Rules, 1982) (for short, hereinafter 11 referred to as "Law and Department Rules"). The Tribunal by an order dated 22.09.1990 disposed of the applications with an observation that since the Law Department Rules cannot be validly challenged, the persons working as Typists may approach the Department with a representation to transfer them to any other Department where passing of English Shorthand was not required. Subsequently, the services of the private respondents were transferred to the Commercial Tax Department by order dated 11.03.1992, The said transfer was made on the request of the private respondents even though it was wrongly stated that the transfer of the private respondents was done in public interest. The applicants were not aware of the said order. The applicants were only aware of the fact that the private respondents were transferred to the Department of Commercial Tax on their own request 12 and their seniority in the Commercial Tax Department would count from the date they reported for duty in the Commercial Taxes Department. Subsequently, the private respondents were shown at Sl.No.261 to 270 in the seniority list of Typists published by the Commercial Tax Department on 08.03.1994. The applicants were shown above the private respondents in the said list. The private respondents did not challenge the said list in any Court of Law. On the other hand, the private respondents were promoted as Stenographers after the promotion of the applicants to the cadre of Stenographers and the private respondents accepted the said promotions. Subsequently, one more seniority list of typists was published on 04.11.1994. In that list also, the applicants were shown above the respondents. Further, in the gradation list of Stenographers published on 04.11.1999, the 13 applicants were shown above the private respondents. The names of private respondents were shown at Sl.Nos.300, 301 and 411 to 419. When things stood thus, by order dated 14.01.2000, the private respondents were granted seniority above the applicants without any notice to the applicants. The applicants had no occasion to file the objections to the provisional list in view of the fact that their rankings were shown above that of the private respondents in the provisional seniority list. Aggrieved by the arbitrary and unilateral action of the official respondents in granting seniority to the private respondents above the applicants, the applicants filed objections on 18.09.2000 contending that the action of the official respondents was not only arbitrary but also against the principles of natural justice and that the private respondents were ineligible for further promotion for having not passed 14 the relevant Departmental Examinations for the purpose of promotion as Inspectors of Commercial Taxes in accordance with the Karnataka Civil Services (Service and Kannada Language Examination) Rules, 1974 and also the Cadre and Recruitment Rules pertaining to the Commercial Tax Department. Despite submitting objections, the injustice caused to the applicants has not been set right. Therefore, the applicants filed applications before the Tribunal seeking quashing of the impugned order dated 14.01.2000 as per Annexure - A7 and the gradation list dated 01.03.2000 as per Annexure - A8 as being arbitrary, illegal, discriminatory and violative of Articles 14 and 16(1) of the Constitution of India as also the principles of natural justice and Rule 10 of the Karnataka Government Servants' (Seniority) Rules 1957 and to direct the official respondents to treat the applicants 15 as seniors to respondents 4 to 15 and to consider the case for promotion to the posts of Commercial Tax Inspectors in accordance with Rules and to grant them all benefits. In addition to that, the relief sought was to quash the final gradations list dated 21.10.2000 pertaining to the cadre of Stenographers with a direction to the official respondents by giving particular rankings to the applicants after giving opportunity to them to submit their objections to the rankings it assigned to them in the said list. Therefore, the subject matter of the applicants before the Tribunal is the order dated 14.01.2000 and the Gradation List of Typists dated 01.03.2000 and Gradation List of Stenographers was 21.10.2000. The Tribunal, on consideration of the rival contentions held, in the year 11.03.1992 passed by the Commissioner of Commercial Tax appointing the private respondents as Typists in the Department of 16 Commercial Tax. It was subsequently stated that the seniority of private respondents would count in the Department of Commercial Tax only from the date they report for duty. The private respondents accepted the order without any demur. Thereafter, the Commissioner of Commercial Tax published seniority list of Typists and in the list, the private respondents were shown below the applicants. The private respondents did not question this list also. In course of time, the private respondents secured promotion to the cadre of Stenographers on the basis of their seniority in the Commercial Tax Department. Thereafter, seniority list in the cadre of Stenographers was also published and in the list also, the private respondents were shown before the applicants. This list has also remained unchallenged by the private respondents. When the entire matter was settled, the Department of Personnel and 17 Administrative Reforms issued the order dated 14.01.2000 directing determination of seniority of private respondents under the Second Proviso of Rule 6 of the Seniority Rules. It is that that stage, the problem started. It was of the view that, when the private respondents have already secured promotion to the cadre of Stenographers on the basis of their seniority in the Commercial Tax Department, now they are aspiring for further promotion. The private respondents prevailed upon the Government to treat their transfer as having been done in public interest and to consider them as senior to the applicants, that too after a lapse of nearly six years after the position was settled. In view of the conduct of the private respondents in not questioning the order passed by the Commissioner in the year 1992 and also the seniority lists published in the years 1994 and 1999, which denied the benefit of past 18 service to the applicants and also in view of long lapse of time, it would not be proper for this Tribunal at this stage to consider in these proceedings whether the transfer of the private respondents to the Commercial Tax Department was done in public interest or not and whether or not the Commissioner of Commercial Tax was justified in imposing the condition in the order of transfer that the seniority of the private respondents in the Commercial Tax Department would count only from the date on which they report for duty in the Commercial Tax Department. Sometimes, Rules in service matters cause hardship and this is unavoidable. If the seniority that existed in the years 1994 and 1999 is disturbed, that will affect the interest of the Department. Private interest of employees of public undertakings cannot over ride public interest and an effort has to be made to harmonize the two 19 considerations. No scheme governing service matters can be fool proof and some section or the other of employees is bound to feel aggrieved on the score of its expectations being falsified or remaining to be fulfilled. It is essential that any one who feels aggrieved by the seniority assigned to him should approach the Court as early as possible; as otherwise in addition to the creation of sense of insecurity in the minds of the Government servants, there would also be administrative complications and difficulties. In the instant case, the seniority lists published in the years 1994 and 1999 have remained unchallenged. The Courts and Tribunals should be slow in disturbing the settled affairs in a service for a long period, as held by the Supreme Court in several cases and therefore to quash the Order dated 14.01.2000 and the Gradation List dated 01.03.2000 as well as 21.10.2000 and Respondent No.3 be 20 directed to restore the seniority of the applicants in the cadre of Typists and Stenographers as it existed in the seniority list published in the year 1994 and 1999. Aggrieved by the said order, the private respondents have filed these writ petitions.
5. Learned Senior Counsel appearing for the petitioners assailing the impugned order contended that the Tribunal has not taken into consideration the admitted facts in the case. Admittedly, these petitioners, i.e., private respondents before the Tribunal were transferred from the Directorate of Prosecutions in public interest. Once if the transfer is effected in public interest, Second Proviso to Rule 6 of the Karnataka Government Servants' (Seniority) Rules 1957 provides that, the seniority of a person transferred in public interest shall be determined on the date of such transfer with reference to his first 21 appointment to the Class or Grade from which he was transferred. Unfortunately, when the Commissioner of Commercial Tax Department passed an order on 11.03.1982, he did not keep in his mind this statutory provision but directed that their seniority in the Commercial Tax Department would be counted from the date they reported for duty in the Commercial Tax Department. The private respondents in pursuance of the said order reported to duty and even made representations for correction of the said error in the said order. In the meanwhile, Gradation Lists were published showing the applicants as Seniors to the private respondents. As the private respondents did not question the Gradation List, the Commissioner also published a provisional seniority list. Thereafter, the Department of Personnel and Administrative Reforms passed an order dated 14.01.2000 directing determination of 22 seniority of the private respondents as per the second proviso to Rule 6 of the Seniority Rules, 1957. Giving effect to the said Government Order, Gradation Lists are now prepared which is in accordance with law and the Tribunal is not entitled in interfering with the Government Order as well as the Gradation lists on the ground that they have not been challenged and services of the private respondents were transferred to the Commercial Tax Department by order dated 11.03.1992 and in the meanwhile, six years have already elapsed. He submits that the entire approach of the Tribunal is erroneous and calls for interference.
6. Per contra, learned counsel appearing for the respondents submitted that the proceedings before the Tribunal, which was initiated earlier by only one person. The said order of the Tribunal is 23 passed behind the back of the applicants. If the Government order dated 11.03.1982 was passed behind the back of the applicants and they were not heard in the matter as they were all originally recruited to the Commercial Tax Department. They are seniors to the private respondents. Though in the order dated 11.03.1982, it is mentioned that they are transferred in public interest. If we look into the said order, it is clear that it is at the request of the private respondents, the said transfer has been made and Second Proviso to Rule 6 is not attracted to the facts of the case. When the transfer is at the request of the private respondent, they have to forego the seniority in the parent department and they are deemed to be in service only from the date, they reported to duty. The order dated 11.03.1982 is not challenged even to this date and the Gradation Lists published in the years from 1994 to 1999 is also not 24 challenged by the private respondents. The order dated 14.01.2000 is violative or principles of natural justice. Similarly, while giving effect to the Gradation Lists, no Provisional Lists were published. Straightaway final list was published, objections were filed by the applicants, which has not been considered respondent. It is in these circumstances, when law is well settled and when the Gradation list was not challenged and even the order of appointment was not challenged, it is not open to the private respondents to seek for seniority above the applicants after a period of six years. That too after obtaining promotion on the basis of the Gradation List 1994 to 1999. Therefore, he submits that the order passed by the Tribunal is strictly in accordance with law and do not call for any interference. It is in this context, it is necessary to know, what is the law 25 on the point is? Rule 6 of the Rule 1957 reads as under:
"6. The transfer of a person in public interest from one class or grade of a service to another class or grade carrying the same pay or scale of pay shall not be treated as first appointment to the latter for purposes of seniority; and the seniority of a person so transferred shall be determined with reference to his first appointment to the class or grade from which he was transferred.
Provided that, where the transfer is made at request of the office, he shall be placed in the seniority list of the class or grade or service to which he is transferred below all the officers borne on that class or grade of service on or before the date of the transfer.
Provided further, that the seniority of a person transferred in public interest vis-à-vis the persons actually holding the post in the Class or Grade to which he is transferred shall be determined on the date of such 26 transfer with reference to his first appointment to the class or grade from which he was transferred.
Explanation :- For the purpose of the above proviso, the persons actually holding the posts do not include the persons who have before the date of such transfer been promoted, whether in an officiating or substantive capacity to a higher class of grade".
7. A reading of the aforesaid provision makes it very clear that the transfer in public interest from one class or grade of a service to another class or grade carrying the same pay or scale of pay shall not be treated as first appointment to the latter for purposes of seniority and the seniority of a person so transferred shall be determined with reference to his first appointment to the class or grade from which he was transferred. Further, if the transfer is made at the request of the officer, he shall be placed in the 27 seniority list of the class or grade of service to which he is transferred below all the officers borne on the class or grade of service on or before the date of the transfer. While deciding the interse seniority between the persons who is transferred and the persons who are holding the post in the class or grade to which he is transferred shall be determined on the date of such transfer with reference to his appointment to the class or grade from which he was transferred. Therefore, it is clear, when a person is transferred from one class of service to another class, it shall not be treated as his first date of appointment for the purpose of seniority. It is in this background, the order dated 11.03.1992 is passed. After setting out the series of events, which lead to the order, the final portion of the order reads as under: 28
"In pursuance of the orders of the Karnataka Administrative Tribunal in Application No. 4360/1988 and after careful examination of the proposal of the Director of Prosecutions and Government Litigations, the Government of Karnataka are pleased to transfer the following typists from the Department of Prosecutions and Government Litigations to the Department of Commercial Taxes on permanent basis in the interest of public service with immediate effect as per Rule 16 of the Karnataka Civil Services (General Recruitment) Rules, 1957.
This order is issued with the concurrence of the Finance Department and Department of Personnel and Administrative Reforms (Service Rules) vide their Note dated 13.10.1991 and 07.02.1992. Rule 16 of the Karnataka Civil Services (General Recruitment) Rules, 1977 reads as under:29
"16. Relaxation of Rules relating to appointment and qualifications: Notwithstanding anything contained in these Rules or the Rules of Recruitment specially made in respect of any service or post, the Government may, for reasons to be recorded in writing:
a) appoint to a post:-
(i) an officer of the Defence Services, an All India Service or a Civil Service of the Union, or the Civil Service of any other State;
(ii) an officer holding a post of an equivalent grade, by transfer or by deputation from any other service of the State for recruitment to which these Rules apply:
Provided that appointment by transfer under this sub-clause shall not be made unless the officer has passed the examination prescribed under the Karnataka 30 Civil Services (Service and Kannada Language Examinations) Rules, 1974 for the post to which he is proposed to be transferred.
Therefore, this Rule provides for appointment by transfer or by deputation. The order which is dated 11.03.1992 is an order on transfer made on permanent basis. It is in this background, we have to see the order passed by the Commissioner, Commercial Tax Department giving effect to the aforesaid Rules, which reads as under:
"(i) They should be ready to serve wherever they are posted in this Department;
(ii) They are required to attend both Kannada and English Typewriting work in this Department;31
(iii) Their Seniority in this Department counts from the date of their report for duty in this Department.
Clause III makes it clear that the seniority in this Department counts from the date of duty in the Department while imposed the said condition in the year 20.04.1992. The Commissioner of Commercial Tax has not taken into consideration the fact that the aforesaid transfer is in public interest and Rule 6 is attracted in so far as deciding the seniority of the said Clause is exfacie contrary to the said Rules and the earlier Government order transferring them. It is in pursuance of the said order dated 20.04.1992, the seniority list was published in which the applicants were shown at the top and the private respondents were shown below them. Taking their date of joining to the Commercial Tax Department as the date of 32 their appointment in the Commercial Tax Department, after reporting the duty, they have made representations / appeals bringing to the notice of the Authorities that their transfer was on public interest and the seniority has to be counted from the date of their reporting for duty in the Commercial Tax Department. Inspite of the said representations, in the list issued in the year 1994 to 1999, the applicants name had been shown above the name of the private respondents. However, after consideration of their representations, taking into consideration of the aforesaid provisions and the order of appointment passed by the Commissioner, Commercial Tax Department, the Government by an order dated 14.01.2000 rectified the mistake and restored the seniority of the private respondents. As is clear from the order of the Tribunal, it thought, it would be proper for the Tribunal at this stage to 33 consider in these proceedings, whether the transfer of the private respondents to the Commercial Tax Department was done in public interest or not and whether the Commissioner of Commercial Tax Department was justified in imposing the conditions in the order of transfer that the seniority of private respondents in Commercial Tax Department would count only from the date on which they report for duty in the Commercial Tax Department. These are also precisely the questions raised by the private respondents before the Tribunal. It is their specific case that, they were transferred in public interest and the Commissioner of Commercial Tax Department imposed the conditions, which are contrary to law and illegal and therefore, the Government has interfered and has rectified the mistake. Without deciding the issue, the Tribunal committed a serious error in setting aside the order 34 dated 14.01.2000 as well as the Gradation List dated 01.03.2000. Therefore, on the face of it, the order of the Tribunal cannot be sustained and is liable to be set aside. The Tribunal proceedings on the assumption that the private respondents have kept quiet and not challenged the order dated 02.04.1992. The material on record discloses that they did not challenged the said order by approaching the Court. They brought to the notice of the Authority, the injustice done to them and sought by rectification. They have stated that they are already in service and waiting for the Authorities to do justice to them. Therefore, it is not correct to say that the private respondents acquiescence with the said order, and that they did not have any objections for the said order nor they did not challenge the said order. Similarly, the lists which are published, Gradation List published in the year 1994 to 1999 were not 35 final lists. If the order dated 02.04.1992 stands, the Gradation Lists in the year 1994 to 1999 is correct. When they were challenging the order dated 02.04.1992, unless the legality of the said order is decided, the question of challenging the Gradation Lists would not arise. Therefore, they were waiting for the Authorities to consider the representations and pass appropriate orders. Ultimately, on 14.01.2000, their contentions were upheld in the order and the injustice done to them was rectified by imposing Clause III of the order dated 02.04.1992. Once it is held for the for the purpose of seniority, their date of entry into service into the parental department is taken into consideration, they become seniors to the applicants itself and on that basis, the Gradation List dated 01.03.2000 and 21.03.2000 were passed. Therefore, the finding of the Tribunal that the order dated 14.01.2000 is without any 36 substance. The said order is in-conformity with the original order dated 11.03.2000 read with Rule 6 read with Rule 16 of the Rules 1977 and is valid and legal. In so far as the Gradation Lists dated 01.03.2000 and 21.03.2000 are concerned, without publishing the provisional lists and calling for objections from the effected persons, Authorities were not justified in publishing a final list. Merely because the order dated 14.01.2000 came to be passed prescribing the date of entry of the private respondent in the parent department as the date which has to be taken into consideration for determining the seniority, it does not automatically mean that they are the seniors to the applicants. The date of entry into service of the applicants has to be looked into and then only, the seniority list has to be finalized. Therefore, it had been incumbent on the Authorities to publish a provisional list dated 37 14.03.2000. Admittedly, that exercise has not been one. Though the applicants have filed their objections to the Gradation List, as it is not considered, that would not satisfy the requirement of natural justice. After the Gradation List was published, before publishing the Final List, objections has to be called for and aggrieved persons has to be heard and final Gradation List has to be published. Hence, Gradation Lists dated 01.03.2000 and 21.03.2000 are liable to be set aside on the grounds of violation of principles of natural justice.
We direct that the Gradation List dated 01.03.2000 of Typists and Gradation List dated 21.03.2000 of Stenographers, which are set aside by the Tribunal shall be treated as Provisional Lists and the applicants are permitted to file their objections to the said Provisional Lists within two months from the date of receipt of copy of this order. On receipt of 38 their objections, the Authority shall finalize the Gradation List as expeditiously as possible and thereafter publish the Gradation List, keeping in mind the order dated 14.01.2000 and Second Proviso to Rule 6 of Rules 1957 and publish the same in accordance with law.
Parties to bear their own costs.
Sd/-
JUDGE Sd/-
JUDGE dh*