Madras High Court
P.Shanmuganathan vs The Secretary To Tamil Nadu Government on 31 August, 2016
Author: R.Mahadevan
Bench: Sanjay Kishan Kaul, R.Mahadevan
IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON: 28.07.2016 DATE OF DECISION: 31.08.2016 CORAM THE HON'BLE MR.SANJAY KISHAN KAUL, THE CHIEF JUSTICE AND THE HON'BLE MR.JUSTICE R.MAHADEVAN W.A.No.2280 of 2011 P.Shanmuganathan .. Appellant -vs- 1.The Secretary to Tamil Nadu Government, Commercial Taxes and Registration Department, Secretariat, Chennai-600 009. 2.The Principal Secretary and Commissioner of Commercial Taxes, Ezhilagam 1st Floor, Chepauk, Chennai-600 005. 3.S.Vijayakumar 4.R.S.Viswanathan 5.R.Gnanaprakasan 6.P.Sitrarusu 7.P.Kasiviswanathan 8.A.Lakshmipathi 9.R.Shanmuganathan 10.P.Sakthivel 11.K.Sadasivam (R-9 to R-11 impleaded as party respondents vide order of Court dated 16.02.2016 made in CMP No.2093 of 2016). 12.N.Vadivel 13.N.Saravanakumar 14.L.Meenakshi 15.J.Anbutamilarasi 16.R.Kavitha (R-12 to R-16 impleaded as party respondents vide order of Court dated 03.03.2016 made in CMP No.3659 of 2016). 17.R.Karunanithi (R-17 impleaded as a party respondent vide order of Court dated 30.03.2016 made in CMP No.5711 of 2016). 18.M.Rajendran (R-18 impleaded as a party respondent vide order of Court dated 30.03.2016 made in CMP No.5833 of 2016). 19.T.K.Sureshkumar 20.Harikumar (R-19 and R-20 impleaded as party respondents vide order of Court dated 30.06.2016 made in CMP No.10570/2016). .. Respondents Appeal filed under Clause 15 of the Letters Patent, against the order dated 06.04.2011 passed by this Court in W.P.No.11618 of 2009. For Appellant : Mr.Sathish Parasaran, Sr.Counsel for Mr.S.P.Asokan For Respondents : Mr.A.L.Somayaji, Advocate General assisted by Mr.V.Haribabu, AGP(T) for R1 Mr.S.T.S.Moorthy, Govt.Pleader for R2 Mr.T.Ayangaraprabhu for R3 Mr.P.Wilson, Sr.Counsel for Mr.E.Vijay Anand for R4 Mr.AR.L.Sundaresan, Sr.Counsel for Mr.E.Vijay Anand for R6 Mr.S.Ramajayam for R7 Mrs.AL.Gandhimathi for R8 Mr.V.Prakash, Senior Advocate for Mr.R.Murugabharathi and Mr.Krishnamoorthy for R9 to R17 Mr.N.Balakrishnan for R18 Mr.Richardson Wilson for R19 and R20 JUDGMENT
R.MAHADEVAN, J.
The writ appeal has been filed challenging the order passed by this Court in W.P.No.11618 of 2009 dated 06.04.2011. The issue relates to promotion. The writ petition in W.P.No.11618 of 2009 is one among the batch of writ petitions filed in W.P.Nos.11618 of 2009, 18847 to 18853 of 2009 and 21448 to 21455 of 2009. Since common facts were involved in those writ petitions, the learned single Judge of this Court has dealt with the facts involved in W.P.No.11618 of 2009.
2.The facts arising out of the writ petition in W.P.No.11618 of 2009 from which the present writ appeal has arisen, are as follows:
(i)The prayer in W.P.No.11618 of 2009 was to quash the order of the second respondent 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. The said order was passed pursuant to the judgment of the Hon'ble Supreme Court in Civil Appeal No.1454 of 1987 dated 10.02.1999.
(ii)Originally, the Government of Tamil Nadu published the provisional seniority list of Assistant Commercial Tax Officer in the year 1985 and the same was challenged before this Court in W.P.No.12786 of 1985 on the ground that the regular rule for fixing the seniority was not followed by the State Government. This Court considered the matter in detail and by order dated 19.06.1986, set aside the provisional seniority list. While assailing the provisional seniority list, this Court also laid down certain guidelines. In the operative part of the judgment, this Court directed that on the basis of guidelines in the judgment, the Assistant Commercial Tax Officers at Sl.Nos.129 to 519, in the impugned seniority list can be placed above the writ petitioners over the direct recruits in the 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 writ petitioners commenced their probation. The Government did not challenge the guidelines, and it only challenged the direction given by this Court with regard to Assistant Commercial Tax officers placed at Sl.Nos.129 to 519 in the impugned seniority list, before the Hon'ble Supreme Court in Civil Appeal No.1454 of 1987. The objection raised was to the expression permanent cadre strength. The contention of the State Government was that the cadre contains not only permanent posts, but also temporary posts, and as regards the direct recruits, they were recruited only for permanent posts, but transferees from other services were appointed not only to the permanent posts, but also to temporary posts. The stand of the State Government was that employees holding the temporary posts prior to appointment of the writ petitioners before this Court, should also be considered for the purpose of fixing the seniority and they should not be omitted out of consideration. One another stand of the Government was that temporary appointment to a permanent post was different from regular appointment to a temporary post. 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 comprised not only permanent posts, but also temporary posts. The Hon'ble Supreme Court has taken 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 in Part II of the Tamil Nadu State and Subordinate Service 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. Therefore, the Hon'ble Supreme Court followed the well settled law that the Rules do not confer any right to the appointee, to claim seniority over others who were regularly appointed, though later in time in accordance with relevant Rules. The Hon'be Supreme Court also took note of the observation of this Court which reads as under:
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 as the transferees were from the services of the Ministerial service to a subordinate service, they should have been appointed only under the Rule 10(a)(i). This doubt has not been cleared on the side of the respondents as well. But that will not make any differences as the substance of Rule (1) and Rule 39 of the General Rules is the same, in the sense, the former applies to temporary appointment and the latter to temporary promotion. In view of the above, any appointment made, though all persons eligible or qualified by way of transfer in excess of their respective quota, would be otherwise than in accordance with the Rules.
(iii)It is relevant to point out at this juncture that this Court has held that the transferees, who could not be accommodated in the quota reserved for them, cannot claim seniority over direct recruits as and when such direct recruits replace them. This Court placed reliance on the judgment of the Hon'ble Supreme court in A.I.R. 1984 SC 1291 (P.S.Mahal Vs Union of India) and held that those officers who were temporarily promoted by transfer will have to step down as and when direct recruitments are made.
(iv)The Hon'ble Supreme Court, taking note of the substantive vacancies relating to permanent posts and the fact that no material was placed to show that the cadre comprised both the temporary and permanent posts, by judgment dated 10.02.1999, confirmed the Chart and ultimately upheld the judgment passed by this Court in W.P.No.12786 of 1985 dated 19.06.1986. Thereafter, the contempt petition was also closed, directing the State to publish seniority list in terms of the directions given.
(v)These are all the background facts governing the issue.
3.Since the stand of the State in W.P.No.11618 of 2009 was that the impugned order was passed to comply with the directions of the Hon'ble Supreme Court, the learned single Judge has made observations in respect of the judgment of the Hon'ble Supreme Court in detail.
4.(i)In support of the prayer made in the writ petition, now under challenge in the present writ appeal, the stand of the writ petitioner was 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. A reference was also made to another case; ie. 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. The further stand of the writ petitioner was that the State Government failed to prove before the Court, that the cadre strength of A.C.T.Os has included temporary posts by producing Government orders, by which the posts were sanctioned. 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 and the same was subsequently withdrawn.
(ii)The petitioner in W.P.No.11618 of 2009/the appellant herein, pleaded that the cadre of A.C.T.Os consists of 271 permanent posts and 1038 temporary posts. According to Rule-2 of the Special Rules to Tamil Nadu Commercial Taxes Subordinate Service, 33-1/3% of the vacancies in the permanent posts are to be filled up by direct recruitment, and remaining 66-1/3% of the vacancies in the permanent posts by transfer. The writ petitioner /appellant was appointed to the post of A.C.T.O by transfer from the Tamil Nadu Ministerial Service in the year 1985 from the list of approved candidates drawn by the second respondent for the year 1985, in accordance with the rules applicable to such appointment. The writ petitioner /appellant herein, started working as A.C.T.O in the year 1987. He claims that he was appointed against one of the 66- 2/3% vacancies of the permanent posts or 100% vacancies in the temporary posts, which, during the year 1985, were reserved for the transferees, and that he was not appointed against 33-1/3% of vacancies in the permanent posts that occurred during the year 1985, for direct recruitment. The petitioner/appellant herein, was promoted from the post of A.C.T.O. to the higher post of Commercial Tax officer (CTO) in the year 1998 and further promoted to the post of Assistant Commissioner in the year 2003. In the impunged seniority list, the name of the writ petitioner/ appellant has not been included in the list of permanent post holders amongst the A.C.T.Os. for the years 1968 to 2006, but included at Sl.No.159 in the list of A.C.T.Os which have not been considered for permanent vacancies and shown separately with the year of appointment. Inspite of the fact that the petitioner /appellant has put in 22 years of service since his appointment, he has been placed below the junior most directly recruited A.C.T.O presently working in the Department. This, according to the writ petitioner / appellant, will affect the right of the writ petitioner in the seniority, as the person to be appointed as A.C.T.O. will also be ranked senior to the writ petitioner and the writ petitioner / appellant would also likely be demoted and reverted from the present post of Assistant Commissioner to the post of temporary A.C.T.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.
(iii)In support of the plea that the cadre strength of A.C.T.O includes 1038 temporary posts, reliance was placed on G.O.Ms.No.1374, CT & RE Dept, dated 28.10.1988. The writ petitioner / appellant also pleaded that his appointment to the post of A.C.T.O. was not fortuitous or ad hoc or made 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. An averment was also made that in case his appointment 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 of Part II of the Tamil Nadu State and Subordinate Service Rules, nor he could have been promoted to next higher post. The writ petitioner / appellant also pressed into service the law of the Doctrine of Legitimate Expectation.
(iv)In the counter filed by the respondents 3 to 7, in the writ petition, the averments made by the writ petitioner / appellant were denied. The stand taken by them was that the impugned order was issued in accordance with the orders of the Division Bench of this Court in W.P.No.12786 of 1985 dated 19.06.1986 passed in conformity with Rules, as upheld by the Hon'ble Supreme Court in Civil Appeal No.1454 of 1987 decided on 10.02.1999. It was pleaded that the writ was bad for non joinder of necessary parties, as the petitioners therein have challenged the seniority list without impleading the persons to be affected, as parties. On merit, the stand taken by them was that the contesting respondents were recruited through Tamil Nadu Public Service Commission as A.C.T.O. in the year 1990 for the vacancies which had arisen for the year 1986 1987. During the year 2001 and 2003, the contesting respondents were promoted as D.C.T.O., and the fourth respondent was also promoted as Commercial Tax officer, now designated as Assistant Commissioner in the year 2004 and further promoted in the year 2006 from the date of initial appointment. It was also pleaded that though provisional inter-se seniority list was published on 01.12.2008 in terms of the order passed by the Division Bench of this Court as affirmed by the Hon'ble Supreme Court, objections were invited and after considering those objections, the impugned order was passed. In sum and substance, the stand in the counter affidavit filed by the respondents 3 to 7, was that all the contentions raised in the writ petition were raised before the Hon'ble Supreme Court and the same were rejected, and therefore, the same is barred by the principle of constructive res judicata. It was also pleaded by the respondents 3 to 7 before this Court that liberty was granted by the Hon'ble Supreme Court to object to any order of 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.
(v)The second respondent also filed a counter wherein the only contention raised was 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 made was to vacate the interim injunction and also for dismissal of the writ petition.
(vi)Before the Writ Court, Mr.S.P.Asokan, learned counsel for the petitioners vehemently contended that the writ petitioner/ appellant was a 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. He further contended that in view of his regular appointment, he availed three promotions, but now in the impugned seniority list, the name of the petitioner did not appear, but his name has been included in the supplementary list of temporary A.C.T.O. of 2006 at Sl.No.169. The contention of the learned counsel for the writ petitioner was that there were 271 permanent posts and 1038 temporary posts of A.C.T.O. and that 1038 temporary posts have been in existence for several decades i.e. right from 1968. G.O.Ms.No.1368 Finance (E-II) Department dated 04.11.1963 was issued directing that the temporary posts which have been in continuous existence for over three years should be made permanent, but the said G.O. still remains to be implemented. The learned single Judge rejected the contention of the writ petitioner, since a decision has been taken vide G.O.Ms.No.1, Commercial Taxes and Registration (A2) Department, dated 04.01.2010, to retain 2217 temporary posts permanently. However, the order was made prospective.
(vii)The learned counsel for the writ petitioner referred to rules dealing with matter of recruitment to contend that the post of A.C.T.O. has to be filled up by two methods; i.e. direct recruitment and recruitment by transfer from amongst Assistants in Tamil Nadu Assistant Ministerial Service and those in the secretariat, Commissioner's office and STAT by transfer. Therefore, the contention was that 1038 temporary posts of A.C.T.O. were to be filled up by way of transfer. The learned single Judge rejected this contention also, as the dispute in the case on hand is with regard to the seniority between the persons appointed to the cadre, and the persons appointed to the post not falling in the cadre. Another contention of the writ petitioner was that in actual practice, the rule of appointment was violated, which has resulted in confusion, as it will not be possible now, to know whether transferee A.C.T.O was appointed to permanent post or to temporary post. This contention was also rejected by the learned single Judge stating that from the date of availability of vacancies, and the date of appointment, it can easily be found out as to whether the person was appointed to the post in the cadre, or to a temporary post not included in the cadre.
(viii)The next contention of the learned counsel for the writ petitioner was that there is no rule either in the General rules or in the sub rules prescribing as to how the inter-se seniority has to be fixed between the directly recruited A.C.T.Os. and persons appointed by transfer. The learned single Judge rejected the said contention stating that the same does not arise, as continuous length of service is to be the critieria for fixing seniority in the absence of rule. It was also the contention of the writ petitioner that this Court should lay down criteria of seniority to fill up the lacuna. This was not accepted by the learned single Judge by stating that it is well settled principle of law that in the absence of rule of seniority, the length of service has to be taken as criteria, provided the appointment is to a cadre post. The contention of the learned counsel for the petitioners that this criteria laid down was to apply only to persons selected upto the year 1981 and not thereafter, was not accepted by the learned single Judge, as the principle of law laid down would be binding, even for the subsequent period. It was also held that the said contention stands answered as per Rule 3(a) of the General Rules. It was further held that the Hon'ble Supreme Court specifically laid down that the seniority of the employees falling in the cadre has to be fixed, which has been done in the order impugned in the writ petitions.
(ix)It was also contended before the learned single Judge by the learned counsel for the writ 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. The learned single Judge rejected the said contention made by the learned counsel for the writ petitioner stating that the direct recruits were appointed against the substantive vacancies whereas transferees were appointed in excess of their quota by way of temporary appointment; that is what has been clarified by the Division Bench of this Court, which stands affirmed by the Hon'ble Supreme Court.
(x)It was also contended by the learned counsel for the writ petitioner that the procedure adopted in framing the impugned seniority list violates the order of the Government in G.O.Ms.No.624 which lays down that the estimated vacancies in permanent posts every year should be filled up by direct recruitment to different post against the vacancies which are expected to arise on account of the retirement of permanent incumbents in the panel year for which recruitment is made, and to the vacancies that arise during the panel year from the following causes during the panel year:
(a)Provisions of the date when the vacancies for the direct recruitment are due i.e. Appointment and confirmation of permanent incumbent in another service.
(b) Death of permanent incumbent.
(c) Permanent retention of the temporary post.
(xi)The learned single Judge observed that it was not the case of the petitioner that 271 permanent posts have been arrived at in violation of G.O.Ms.No.624, and therefore, the said contention is not relevant to the case on hand.
(xii)It was also contended by the learned counsel for the writ petitioner before the Writ Court that the impugned seniority list affects the rights of the petitioner and it violates Article 335 of the Constitution of India. This contention is based on the fact that the seniority is to be determined on the basis of rank allotted in the list of approved candidates which automatically takes care of rules of reservation, while preparing the list of approved candidates, for which the learned single Judge observed that the contention is raised in frustration, as it is nobody's case that while preparing the impugned seniority list, the merit drawn at the time of selection was violated. It was further held that in the seniority list, the name of the petitioner did not appear for the reason that he was not holding the post in the cadre and was holding a temporary post, which did not fall in the cadre, as held by the Hon'ble Supreme Court.
(xiii)The learned counsel for the writ petitioner further contended before the learned single Judge that the cadre of A.C.T.O. would also include temporary posts. In support of this contention, the learned counsel for the writ petitioner placed reliance on the judgment of the Hon'ble Supreme Court in the case of S.B. Patwardhan and others etc. vs 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. 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 recruits relied upon a decision of this Court in Ganga Ram & Others v. Union of India(3) for showing that a cadre cannot consist of temporary posts but that decision rested on the finding, arising out of rules contained in the Indian Railway Establishment Manual, that direct recruits and promotees constitute different classes. The question which we have to consider at this stage is not whether direct recruits and promotees appointed as Deputy Engineers in the Bombay and Gujarat service of Engineers belong to different classes but Whether officiatng Deputy Engineers belong to class II cadre at all.
(xiv)The learned single Judge rejected this contention also, stating that it cannot be accepted as the Hon'ble Supreme Court in Civil Appeal No.1454 of 1987 decided on 10.02.1999 (State of Tamil Nadu v. S.Sundararaj and four others) dealing with the rules in this case, has held that the temporary posts do fall in the cadre, and therefore, the writ petitioner cannot draw any benefit from the said judgment.
(xv)The learned counsel for the writ petitioner further contended that the ratio of judgment of the Hon'ble Supreme Court referred above would not be applicable to the facts of the present case, as the Hon'ble Supreme Court did not reject the contention raised therein in toto on merits. The counsel submitted that the Hon'ble Supreme Court rather observed that the contention has force, but it was rejected for want of any material on record in support thereof. This contention of the learned counsel for the writ petitioner was also rejected in view of the positive finding given by the Hon'ble Supreme Court that the cadre did not have temporary posts. This finding is fortified by G.O.Ms.No.1 dated 04.01.2010, which shows that the temporary post held by the petitioner have been made permanent with prospective effect i.e. from 04.01.2010.
(xvi)Finally, it was contended by the learned counsel for the writ petitioner that exclusion of the holder of temporary posts from seniority list amounts to violation of equality rules. In support of this contention, the learned counsel for the writ petitioner placed reliance upon the judgment of the Hon'ble Supreme Court in the case of O.P.Singla & another Vs Union of India and others (1984(4) SCC 450) wherein the Hon'ble Supreme Court has laid down as under:
The fact that temporary posts created in the Service under Rule 16(1) had to be continued 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 imperilled, though unwittingly, the reasonable expectations of the promotees. Wittingly' because, no one appears to have been interested in belittling the contribution of the promotees 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 to-day 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 promotees in the ratio of one to two. In these circumstances, it will be wholly unjust to penalise the promotees for the dilatory and unmindful attitude of the authorities. It is not fair to tell the promotees that they will rank as juniors to direct recruits who were appointed five to ten years after they have officiated continuously in the posts created in the Service and held by them, though such posts may be temporary. This Court, at least, must fail them not.
(xvii)This above contention of the learned counsel for the writ petitioner was also rejected by the learned single Judge. It was held by the learned single Judge that a reading of the judgment shows that temporary posts were created in the cadre under Rule 16(1) of the rules which were under consideration. But in the present case, there is a positive finding by the Hon'ble Supreme Court that the temporary post did not form part of the cadre and for the same reason, the judgment of the Hon'ble Supreme Court in the case of Baleshwar Dass Vs State of U.P.( (1980)4 SCC 226) will not be applicable.
(xviii)The learned single Judge further held that the judgment of the Hon'ble Supreme Court in the case of A.Janardhana Vs Union of India in (1983)3 SCC 601 on which reliance was placed by the learned counsel for the writ petitioners, can also be of no help to the petitioners, as in that case, again the appellant therein rendered service on the post included in the cadre, whereas the Hon'ble Supreme Court in this case has recorded a positive finding that the temporary posts are not included in the cadre.
(xix)The learned single Judge further held that as per Rules 1, 2 and 10 of the Tamil Nadu State and Subordinate Service Rules, the case of the writ petitioner deserves to be rejected. It was further held that the Rules referred to above shows that though temporary appointments are permissible, the employee would be deemed to be appointed to the service only when he discharges duties of the post on the cadre post of such service or commenced probation on induction for training prescribed for members thereto, and therefore, in order to claim seniority, the pre-requisite is that the post held by an employee should be a cadre post-permanent or temporary. It was further held that as per G.O.Ms.No.1 dated 04.01.2010, the temporary posts, would form part of cadre only with effect from 04.01.2010, as it is prospective in nature.
(xx)The learned single Judge has dealt with the matter in detail, and finally rejected the contentions put forth by the learned counsel for the writ petitioner and rejected all the writ petitions, as no ground has been made out to interfere with the findings rendered in the impugned order. Accordingly, the learned single Judge dismissed the writ petitions.
5.Challenging the order passed by the learned single Judge in W.P.No.11618 of 2009, the writ petitioner has come up with the present writ appeal.
6.Mr.Sathish Parasaran, learned senior counsel appearing for the appellant has submitted that grave injustice has been done to promotee Assistant Commercial Tax Officers in the seniority list challenged in the writ petition. The appellant was regularly appointed to the post of Assistant Commercial Tax Officer (hereinafter referred to as ACTO) in the year 1985 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 claims of all contesting candidates. His appointment was not temporary, fortuitous or it was made by way of stop gap arrangement. After his regular appointment as ACTO, he got three promotions first as Commercial Tax Officer in the year 1998 and then as Assistant Commissioner in the year 2003 and then as Deputy Commissioner in the year 2010. In the seniority list impugned in the writ petition, fixing seniority of ACTOs during 30 years period right from 1968 till 2006, his name does not appear anywhere in that list. As a small mercy, his name was included in a supplemental list under the title List of Temporary ACTOs-2006 in Sl.No.159. This means that even a direct recruit ACTO who was appointed only yesterday, would be senior to him, and even a person who will be appointed as a direct recruit ACTO tomorrow will also be senior to him, since he has been treated only as a temporary ACTO for whom the time for treating him as a regular ACTO has not yet come. The learned senior counsel for the appellant submits that the impugned seniority list, at the stroke of a pen, has removed the appellant's 22 years seniority without a trace. He further submits that to add insult to the injury, the impugned seniority list has placed him under the imminent threat of being reverted from his present post of Deputy Commissioner three rungs down to the post of Temporary Assistant Commercial Tax Officer awaiting regularisation in that post.
7.The learned senior counsel for the appellant further submits that similar fate has been cast on Promotee ACTOs appointed in the years 1979, 1980 and 1982, who, by virtue of the seniority list could count their seniority only from the year 2006, ie., after 25 to 28 years after their actual date of appointment and they are juniors to all direct recruits appointed in the year 2002. Not a single promotee appointed after the year 1984 could find a berth in that seniority list of ACTOs drawn upto the year 2006 in spite of their uninterrupted continuous service for 22 years though some of them are presently working as Deputy Commissioners after getting three promotions after their tenure as ACTOs. If the impugned seniority list is allowed to be implemented, it will give rise to chaos and confusions and even the transferee ACTOs who are now Deputy Commissioners after putting in service for nearly 35 years, will be reverted 3 rungs down to the post of temporary ACTO and a directly recruited ACTO who has joined service only yesterday has to be given three promotions at one stroke and elevated to the post of Deputy Commissioner. He contended that the learned single Judge has failed to appreciate the overall scheme of the Tamil Nadu Service Law. Referring to the Tamil Nadu Service Law, he submitted that temporary posts besides permanent posts have always been forming part of the cadres of post. Though those 1038 posts constituting nearly 80% of the total cadre strength of ACTOs are called temporary posts, it is an admitted fact that they have been in existence for several decades. He further contended that the learned single Judge has failed to consider unassailable reasons given in the written submissions to prove that the cadre of ACTO included not only 271 permanent posts but also 1038 temporary posts that have been in continuous uninterrupted existence for several decades. The one and only question of law invoked in this case is whether the appointees to the 1038 temporary posts of ACTO are entitled for the right to seniority or not. In other words, the question is whether the cadre of ACTO includes temporary posts also. The further submission of the counsel was that the learned single Judge failed to interpret the judgment of the Hon'ble Supreme Court in Civil Appeal No.1454 of 1987 in a correct perspective and that the learned single Judge has failed to see that no universal principle of law binding future cases was laid down by the Hon'ble Supreme Court in Civil Appeal No.1454 of 1987. Therefore, the learned single Judge has erred in concluding that the prospective effect given to G.O.Ms.No.1, dated 04.01.2010 fortifies the factual finding that the cadre did not have temporary posts. In his submissions, the learned senior counsel for the appellant has mainly contended that there was blatant violation of General Rule 35(aa) of the Tamil Nadu State and Subordinate Service Rules. General Rule 35(aa) of the Tamil Nadu State and Subordinate Service Rules, is extracted hereunder:
The seniority of a person in a service, class, category or grade shall, where the normal method of recruitment to that service, class, category or grade is by more than one method of recruitment, unless the individual has been reduced to a lower rank as a punishment, be determined with reference to the date on which he is appointed to the services, class, category or grade;
Provided that where the junior appointed by a particular method or recruitment happens to be appointed to a service, class, category or grade, earlier than the senior appointed by the same method of recruitment, the senior shall be deemed to have been appointed to the service, class, category or grade on the same day on which the junior was so appointed:
Provided further that the benefit of the above proviso shall be available to the senior only for the purpose of fixing inter-se-seniority:
Provided also that where persons appointed by more than one method of recruitment are appointed or deemed to have been appointed to the service, class, category or grade on the same day, their inter-se-seniority shall be decided with reference to their age. He submitted that the right to seniority has, in any event, been granted through Rule 35(aa) and that the said Rule was not considered by the Hon'ble Apex Court in Sundararaj's case. Rule 35(aa) stipulates that seniority commences on the date of a person being appointed to a service. 'Appointed to a service' is defined in Rule 2(1) of the Tamil Nadu State and Subordinate Service Rules to include a person who (i)discharges the duties of a post borne on the cadre of such service; and (ii)in accordance with the Rules. 'Discharge of duties' does not require the person to hold a post against a substantive vacancy. It only requires performance of duties akin to those performed by a permanent post holder. A 'member of a service' is defined in Rule 2(10) to include even a person who has been discharged for want of a vacancy. Therefore, the holding of a post against a substantive vacancy is not even a pre-requisite for the appellant to become a 'member'. The learned Senior Counsel for the appellant submitted that in as much all 16 writ petitioners appointed as ACTOs only after the introduction of General Rule 35(aa) into the Statute, in order to determine their ranks in the inter se seniority list, only General Rule 35(aa) has to be followed and the decision made in Sundararaj's case (supra) relating to Pre-Rule 35(aa) period, has no direct relevance to this writ appeal. He finally submitted that the matter involved in this writ appeal has already been decided by the Hon'ble Supreme Court in the case of S.B.Patwardhan v. State of Maharashtra, reported in AIR 1977 SC 2051, wherein, the method adopted in the impugned seniority list has been held to be unconstitutional and hence the learned single Judge ought to have struck down the impugned seniority list following the ratio of that judgment.
8.The learned senior counsel for the appellant relied on the judgment of the Hon'ble Supreme Court in Baleshwar Dass and Others v. State of U.P. and Others, reported in (1980) 4 SCC 226, in support of his contention that holder for long of temporary post in substantive capacity becomes a member of the Service; appointment made for indefinite long period after satisfying all the tests for regular appointment and in consultation with Public Service Commission would be in 'substantive capacity' and such temporary appointees on completion of probation become members of that Service and that temporary post under the Rules was as much a 'post in the cadre of the Service' and hence the entire length of officiating service of such temporary servants to be considered in determining their seniority in the service vis-a-vis those holding permanent posts.
9.A Counter affidavit dated 07.12.2015 has been filed by the second respondent on behalf of both the respondents 1 and 2. Mr.A.L.Somayaji, learned Advocate General, assisted by Mr.S.T.S.Moorthy, Government Pleader, stated that it has been the stand of the Department all along that it had made regular appointments to temporary posts as well and that the said posts were within cadre. Regular posts and temporary posts put together constitute the cadre strength based on which promotions are granted in all Departments of the Government. For decades, promotions are being granted by all other State Government Departments based on this logic. The Commercial Taxes Department cannot be an exception given that the General Rules apply to this Department and the Special Rules do not have anything to the contrary. Notwithstanding the fact of failure of the Department to produce the relevant records at the relevant point of time before the Courts of Law, the General Rules 4 and 6(c) stipulate that the quota for regular appointments by recruitment by transfer of service would include temporary posts as well. This Court has consistently refused to disgress from the initial orders of the Hon'ble Supreme Court and accede to the prayer of the transferees such as the appellant that temporary posts are also a part of the cadre. As regards the averment that inter-se seniority should have been fixed only with reference to General Rule 35(aa) on and from 1982, it is stated on behalf of the respondents 1 and 2 that the appellant is bound by the directions of the Hon'ble Supreme Court in Contempt Petition (C) No.263 of 2007 in Civil Appeal 1454 of 1987, to draw up the inter-se seniority lists in accordance with its orders dated 10.02.1999. As a consequence, the Department could not apply the said General Rule 35(aa) to all posts, but solely to persons confirmed against permanent posts in each year. However, it did not entirely exclude the transferees who had completed their probation and awaited permanent post vacancies in their own quota for confirmation, but placed them below the persons confirmed as full members in the permanent posts. Such order of juniority is in consonance with General Rules 7 and 8 which could be read in unison with General Rule 35(aa).
10.Inviting the attention of this Court to the additional counter affidavit dated 01.03.2016 filed by the second respondent on behalf of both the respondents 1 and 2, the learned Advocate General, submitted that the Commercial Taxes Department had a re-look at the inter-se seniority lists of Deputy Commercial Tax Officers drawn for 1968 to 2006 and for the subsequent years and recognised several deficiencies. Therefore, the Department has referred the matter to the Government for finding an appropriate redressal mechanism whereupon the Government have constituted a High Level Committee comprising of the Principal Secretaries of the Government in the Department of Finance, Personnel and Administrative Reforms, Commercial Taxes and Registration, Secretary, Law and Principal Secretary / Commissioner of Commercial Taxes, by issue of G.O.Ms.No.132, Commercial Taxes and Registration Department, dated 31.03.2015. He also stated that while examining the relevant material papers of Rules, Court Orders, Proceedings and seniority lists in connection with the presentation of the facts before the Committee, the second respondent has arrived at a prima facie inference that the inter se seniority lists drawn up in pursuance of the directions of the Hon'ble Supreme Court in Contempt Petition (C) No.263 of 2007 in Civil Appeal 1454 of 1987 is to be looked into in various aspects in order to bring them into consonance with the rule provisions. It has been further stated that the revised seniority lists have been tentatively drawn up for all categories of posts in the Department commencing from Deputy Commercial Tax Officer and Commercial Tax Officer in the Subordinate Services to Assistant Commissioner, Deputy Commissioner, Joint Commissioner and Additional Commissioner in the State Services for all the years from 2007 (as on 01.01.2007) to 2015 (as on 01.01.2015) in such a manner to remove the perceived infirmities in the existing seniority lists and in proper and legal adherence to the Court orders and relevant rule provisions. Stating so, the learned Advocate General, prayed that this appeal has to be dismissed.
11.Mr.P.Wilson, learned Senior Counsel appearing for the fourth respondent, narrated the entire facts and submitted that the persons so appointed to the permanent posts of the ACTO against the substantive vacancies by following the quota of 1:2 ratio alone are entitled to be considered for the seniority, in the order of preference as contemplated in Special Rules 2 and 3 of Tamil Nadu Commercial Taxes Subordinate Service Rules and any interpretation otherwise will cause violence to Rules 2 and 3 of Special Rules. The Hon'ble Supreme Court has rightly settled the issue in Sundararaj's case and the law settled would apply at all times and the issue raised in the writ appeal challenging the seniority list dated 04.05.2009 is squarely barred under the principles of res judicata. Further, the law declared by the Hon'ble Supreme Court under Article 141 of the Constitution is binding on all persons even though they were not parties to the said proceedings. He further submitted that pursuant to the directions of the Hon'ble Supreme Court in the Contempt Petition, the State published on 04.05.2009 the proceedings in No.P1/58439/2007 inter-se seniority lists of ACTOs for the years 1968 to 2006 and communicated the same to all. It is stated in the said proceedings that the inter-se seniority list has been prepared in consonance with the four principles laid down by this Court and confirmed by the Hon'ble Supreme Court. The appellant is challenging the resultant seniority list dated 04.05.2009 with the same old untenable arguments which were already rejected by this Court as well as the Hon'ble Supreme Court. He further submitted that the State Government had also issued G.O.(D)No.132 dated 31.03.2015 by which a High Level Committee as constituted for filing curative petition before the Hon'ble Supreme Court regarding inter-se seniority between the direct recruits and transferees in the Commercial Taxes Department. He further submitted that the method of recruitment stated in General Rule 35(aa) is the one referred in Rule 6(a) which deals about the method of recruitment as against the substantive vacancies in the permanent cadre and therefore, Rule 35(aa) cannot be read in isolation with regard to fixation of seniority nor services rendered in the temporary post outside the cadre and quota can be counted towards seniority. Stating so, the learned Senior Counsel for the fourth respondent has submitted that the writ appeal has to be dismissed.
12.Mr.AR.L.Sundaresan, learned Senior Counsel appearing for the sixth respondent, narrated the facts involved in the case and submitted that the promotion as well as upgradation are only for the permanent posts and hence G.O.Ms.No.1, Commercial Taxes and Registration (A2) Department, dated 04.01.2010 has to be considered. In fortification of the said contention, he relied on G.O.Ms.No.17, Commercial Taxes and Registration (A2) Department, dated 10.02.2014 and G.O.Ms.No.47, Commercial Taxes and Registration (A2) Department, dated 31.03.2015, and submitted that those Government Orders also have to be considered. Further, he submitted that 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, he submitted that 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. He submitted that Rule 35(aa) of the General Rules can be operated only against permanent vacancies. He also submitted that the regular cadre alone will be entitled to have the relief and the temporary posts are outside the quota.
13.Mrs.AL.Gandhimathi, learned counsel for the eighth respondent, adopted the arguments of the learned Senior Counsel appearing for the sixth respondent.
14.Mr.V.Prakash, learned Senior Counsel appearing for respondents 9 to 17, after narrating the facts involved in the case, submitted that no seniority list has been published in respect of the recruits from 2010 onwards for the post of DCTO and hence, such recruits will get their seniority based on the principles laid down by this Court in W.P.No.12786 of 1985 dated 19.06.1986, and confirmed in Civil Appeal No.1454 of 1987 by the Hon'ble Supreme Court by judgment dated 10.02.1999. He further submitted that Rule 35(a) and Rule 35(aa) of the General Rules have to be read harmoniously with Rule 2(1) of the Preliminary Rule, 10(d) of the General Rules and Rule 23(a)(1) proviso, and if so interpreted, Rule 35(aa) applies only to a person who is appointed to service in accordance with Rules to a post borne on the cadre and not to temporary posts created outside the cadre. The persons appointed over and above the quota are not governed by Rule 35(aa). Therefore, according to the learned Senior Counsel, the occupants of temporary posts cannot claim seniority as their service in such posts is ad-hoc.
15.Mr.Richardson Wilson, learned counsel for the respondents 19 and 20, adopted the arguments made by Mr.P.Wilson, Sr.Counsel appearing for the fourth respondent.
16.Heard the learned counsel on either side and perused the materials available on record carefully.
17.The order passed by the second respondent, 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, was challenged before this Court in W.P.No.11618 of 2009. The said order was passed pursuant to the judgment of the Hon'ble Supreme Court in Civil Appeal No.1454 of 1987 dated 10.02.1999. Originally, the Government of Tamil Nadu published the provisional seniority list of Assistant Commercial Tax Officer in the year 1985 and the same was challenged before this Court in W.P.No.12786 of 1985 on the ground that the regular rule for fixing the seniority was not followed by the State Government. This Court considered the matter in detail and by order dated 19.06.1986, set aside the provisional seniority list. While assailing the provisional seniority list, this Court also laid down certain guidelines for drawing the seniority list. In the operative part of the judgment, this Court directed that on the basis of guidelines in the judgment, the Assistant Commercial Tax Officers at Sl.Nos.129 to 519, in the impugned seniority list can be placed above the writ petitioners over the direct recruits in the 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 writ petitioners commenced their probation.
18.On a perusal of the records, this Court finds that the Government only challenged the direction given by this Court with regard to Assistant Commercial Tax officers placed at Sl.Nos.129 to 519 in the impugned seniority list, before the Hon'ble Supreme Court in Civil Appeal No.1454 of 1987. The objection raised was to the expression permanent cadre strength. The stand of the State Government was that employees holding the temporary posts prior to appointment of the writ petitioners before this Court, should also be considered for the purpose of fixing the seniority and they should not be omitted out of consideration. One another stand of the Government was that temporary appointment to a permanent post was different from regular appointment to a temporary post. 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 comprised not only permanent posts, but also temporary posts. The Hon'ble Supreme Court has taken 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 in Part II of the Tamil Nadu State and Subordinate Service 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. Therefore, the Hon'ble Supreme Court followed the well settled law that the Rules do not confer any right to the appointee, to claim seniority over others who were regularly appointed, though later in time in accordance with relevant Rules. This Court has held that the transferees, who could not be accommodated in the quota reserved for them, cannot claim seniority over direct recruits as and when such direct recruits replace them and placed reliance on the judgment of the Hon'ble Supreme court in A.I.R. 1984 SC 1291 (P.S.Mahal Vs Union of India).
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 recruited by transfer from among the Assistants and Gujarathi knowing Assistants employed in the Commercial Taxes Department and 10% of 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 both the permanent and temporary posts. Therefore, the Hon'ble Supreme Court, by judgment dated 10.02.1999, confirmed the judgment passed by this Court in W.P.No.12786 of 1985 dated 19.06.1986, holding that as per the chart placed from the year 1972 to 1997, there were only 271 permanent posts as against 422 posts which were shown as temporary. In the year 1997, 1080 posts were shown as temporary out of the total 1351 posts, and that no other figures were given for the years 1973 and 1974. 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. Therefore, it was concluded that if there was increase in the cadre strength from year to year, as contended, there should have been different Government Orders fixing such cadre strength. The Hon'ble Supreme Court accepted the contention that temporary appointments will not by themselves increase the cadre strength and did not rely upon the tabular statement produced by the State of Tamil Nadu. Consequently, the Hon'ble Supreme Court upheld the judgment passed by this Court as stated supra, and the Special Leave Petition filed by one individual person and some other Special Leave Petitions were also ordered to be dismissed. Thereafter, vide order dated 20.10.2008 in Contempt Petition (C) No.263 of 2007 in Civil Appeal 1454 of 1987, the Hon'ble Supreme Court directed the State to publish seniority list in terms of the directions given. The Hon'ble Supreme Court did not entertain the intervening application moved by the employees and permitted them to raise objection to the provisional seniority list and to have recourse of such remedy available to them in the event of rejection of their representation. Pursuant to the judgment of the Hon'ble Supreme Court 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, the impugned order under challenge in W.P.No.11618 of 2009, has been passed.
20.It is apparent that the promotion as well as upgradation are only for the permanent posts and hence G.O.Ms.No.1, Commercial Taxes and Registration (A2) Department, dated 04.01.2010, G.O.Ms.No.17, Commercial Taxes and Registration (A2) Department, dated 10.02.2014 and G.O.Ms.No.47, Commercial Taxes 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 case which had already been decided by the Hon'ble Supreme Court and hence such an act to re-agitate is only to be rejected. If the appellant has any grievance with regard to the judgment passed by the Hon'ble Supreme Court, he has to approach the Hon'ble Supreme Court seeking necessary clarifications, as the seniority list placed before the Hon'ble Supreme Court, has been agreed to by all the parties concerned. Therefore, it is for the appellant to approach the Hon'ble Supreme Court, for clarification of the judgment, if so advised.
21.With the above observations, the writ appeal stands dismissed. No costs.
Index : yes/no (S.K.K.,CJ.) (R.M.D.,J.)
Internet : yes/no 31.08.2016
KM
To
1.The Secretary to Government,
Government of Tamil Nadu,
Commercial Taxes and Registration Department,
Secretariat, Chennai-600 009.
2.The Principal Secretary and Commissioner
of Commercial Taxes,
Ezhilagam 1st Floor, Chepauk,
Chennai-600 005.
THE HON'BLE CHIEF JUSTICE
AND
R.MAHADEVAN, J.
KM
Judgment made in
W.A.No.2280 of 2011
31.08.2016