Dismissed

P.Shanmuganathan, v. the Secretary to Tamil Nadu

Madras HC6 Apr 2011WP/11618/2009

Case brief

AI extract

What is this about?

The High Court dismissed multiple writ petitions challenging the seniority list of Assistant Commercial Tax Officers. The bench upheld the Supreme Court's finding that cadre strength comprised only permanent posts, excluding temporary appointments from seniority considerations for transferees, and rejected arguments based on equal opportunity and legitimate expectation.

What did the court decide?

All writ petitions for quashing the seniority list were dismissed. No order as to costs was passed.

P.Shanmuganathan, Vs the Secretary to Tamil… — Pension and Retirement Benefits | Madras HC (2011)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 06.04,2011

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CORAM

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THE HONOURABLE MR. JUSTICE VINOD K.SHARMA

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Writ Petition Nos.11618 of 2009, 18847 to 18853 of 2009 & 21448 to 21455 of 2009 and M.P.Nos.1, 2 & 4 of 2009 in W.P.No.11618 of 2009, M.P.No.1 & 1 of 2009 in W.P.Nos.18847 to 18853 of 2009 P.Shanmuganathan ... Petitioner in W.P.No.11618 of 2009 M.Padma ..Petitioner in WP 18847/2009 T.M.Rajagopal ..Petitioner in WP 18848/2009 K.Vittaldass ..Petitioner in WP 18849/2009 V.Kaliyamoorthy ..Petitioner in WP 18850/2009 K.Ramji ..Petitioner in WP 18851/2009 E.Andiappan ..Petitioner in WP 18852/2009 S.Paramasivan ..Petitioner in WP 18853/2009 R.Panneerselvam ..Petitioner in WP 21448/2009 A.C.Venkatesan ..Petitioner in WP 21449/2009 G.Banumathi ..Petitioner in WP 21450/2009 S.Kethareswara Prasad ..Petitioner in WP 21451/2009 S.Banumathi ..Petitioner in WP 21452/2009 R.Sivaramalingam ..Petitioner in WP 21453/2009 S.Elangovan ..Petitioner in WP 21454/2009 S.Lalitha ..Petitioner in WP 21455/2009

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Vs.

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https://hcservices.ecourts.gov.in/hcservices/

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1 The Secretary to Tamil Nadu Government, Commercial Taxes and Registration Dept., Secretariat, Chennai 600 009.

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2 The Principal Secretary and Commissioner of Commercial Taxes, Ezhilagam 1^st Floor, Chepauk, Chennai 600 005. ..Respndents 1 & 2 in WP 11618/2009 18847 to 18853,21448 to 2155/2009

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3 S.Viajyakumar 4 R.S.Viswanathan 5 R.Gnanaprakasam 6 P.Sitrarasu 7 P.Kasiviswanathan 8 A.Lakshmipathi ... Respondents 3 to 8 in W.P.11618 of 2009 (Respondents 3 to 7 were impleaded vide order dt.15.7.2009 in M.P.3/2009 in WP 11618/2009 and eight respondent was impleaded vide order dt.4.3.2011)in M.P.1/11 in WP 11618/2009)

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PRAYER IN W.P.No.11618 of 2009 & 18847 to 18853/2009:

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The writ petition has been filed under Article 226 of the Constitution of India to issue a writ of Certiorarified mandamus quashing the order of the second respondent in Proc.No.P1/58439/ 2007 dated 04.05.2009 with its annexes; and directing the respondents to prepare a fresh inter-se seniority list of Assistant Commercial tax Officers strictly in accordance with Rule 35(aa) of Part II (General Rules of Tamil Nadu State and General Subordinate Service and the law declared by the Supreme Court by including in that list of transferees appointed permanently or temporarily to either permanent or temporary posts of ACTO in their respective years of appointment without any consideration as to availability of permanent vacancies for their confirmation in service provided that (i) they were not appointed to the posts reserved for direct recruits and (ii) their appointments to the post of ACTO were made from the lists of approved candidates – whether final or provisional / temporary (not subsequently annulled) drawn by the competent authority).

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WP 21448/2009 to 21455/2009: W.Ps.praying to issue a writ of Mandamus directing the respondents to prepare a fresh inter-se seniority list of Assistant Commercial Tax Officers strictly in accordance with Rule 35(aa) of Part-II- General Rules of Tamilnadu State and General Subordinate Services and the law declared by the Supreme court by including in that list all transferees appointed permanetly or temporarily to either permanent or temporary posts of ACTO in their respective years of appointment without any considertation as to availability of permanent

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vacancies for their confirmations in service provided that

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i) they were not appoidnted to the posts reserved for direct recurits; and

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ii) their appointments to the post of ACTO were made from the lists of approved candidates-whether final or provisional/temporary (not subsequently annulled) drawn by the competent authority;

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Sl.No. 1	W.P.No. 11618/2009	Name of the counsel for Petitioners/Respondents Mr.V.Bhiman
2	18847 to 18853/2009	Mr.S.P.Asokan
3	21448 to 21455/2009	Mr.S.P.Asokan
	Respondent No.1 in all W.Ps.	Mr.P.S.Raman, Advocate General for Mrs.Pushpa maran for Spl.G.P. (Taxes)
	Respondent No.2 in all W.Ps.	Mr.R.Muthukumarasamy, S.C. for Mr..V.Ravikumar
	COMMON	ORDER

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This	judgment shall	dispose of the following writ petitions, as
the common qu brevity,the	estion of law a facts have been	nd facts are involved. For the sake of taken from W.P.No.11618 of 2009.
Sl.No.	W.P.N	os. Name of the Petitioners
1	11618	of 2009 P.Shanmuganathan,
2	18847	of 2009 M.Padma
3	18848	of 2009 T.M.Rajagopal
4	18849	of 2009 K.Vittal Dass
5	18850	of 2009 B.Kaliyamoorthy
6	18851	of 2009 K.Ramji
7	18852	of 2009 E.Andiyappan
8	18853	of 2009 S.Paramasivan
9	21448	of 2009 R.Panneerselvan
10	21449	of 2009 A.C.Venkatesan

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Sl.No.	W.P.No	s. Name of the Petitioners
11	21450	of 2009 G.Banumathi
12	21451	of 2009 S.Kethareswara Prasad
13	21452	of 2009 S.Banumathi
14	21453	of 2009 R.Sivaramalingam
15	21454	of 2009 S.Elangovan
16	21455	of 2009 S.Lalitha

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2 The prayer made in all these writ petitions is issuance of writ in the nature of certiorari to quash the order passed in Proc. No.P1/58439/2007 dated 04.05.2009 communicating inter-se seniority list of Assistant Commercial Tax officers (hereinafter referred to as A.C.T.Os.) for the year 1968 to 2006.

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3 The impugned order is passed in pursuance to the judgment of the Hon'ble Supreme Court in Civil Appeal No.1454 of 1987 decided on 10.10.1999.

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4 The state of Tamil Nadu had published the provisional seniority list of Assistant Commercial Tax Officer in the year 1985. The seniority list was challenged before this Court on the ground that the regular rule for fixing the seniority was not followed by the State Government.

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5 This Court considered the matter in detail and struck down the provisional seniority list. While assailing the provisional seniority list, this Court also laid down the following guidelines for drawing the seniority list;

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Each year should be taken as a unit for fixing the inter-se seniority

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Persons not actually appointed in a year should not be included in that year.

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The date on which an officer commences probation is the proper criterion for fixing inter-se seniority.

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If there are vacancies out of the reservation of 40%/33-1/3% of the permanent cadre of ACTOs for direct recruits, any appointment made either by transfer or promotion cannot be utilised to fill up those vacancies. Such appointments being of temporary character, wherever 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%/33-1/3% posts reserved for direct recruitment.

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6 In the operative part of the judgment, this Court directed that on the basis of guidelines in the judgment, “Assistant Commercial Tax Officer at Sl.No.129 to 159, in the impugned seniority can be placed above the writ petitioners over the direct recruits in the inter-se seniority list, only if they hold the post substantively within the permanent cadre strength allotted to the particular category even before the writ petitioners commenced their probation”.

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7 The State of Tamilnadu did not challenge the guidelines 1 to 4 referred to above and only challenged the direction given by this Court with regard to Assistant Commercial Tax officer placed at Sl.No.129 to 519 in the impugned seniority list. The objection raised was to the “expression permanent cadre strength”.

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8 The contention of the State Government was that the cadre

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contains not only permanent post, but also temporary posts.

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9 The contention before the Hon'ble Supreme Court was that as regards the direct recruits, they were recruited only for permanent posts, but transferee from other service were appointed not only to the permanent posts, but also to temporary posts.

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10 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.

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11 The stand of the State was also that temporary appointment to a permanent post was different from regular appointment to a temporary post.

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12 The contentions were rejected for the reason that there was nothing to show that the cadre strength fixed by the Government in any particular year to comprised not only permanent posts, but also temporary posts.

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13 The Hon'ble Supreme Court taking note of the fact that the State Government had not placed any record before this Court to dispute the contentions of the writ petitioners in the writ petitions that the transferee appointees were appointed only under Rule 10(a) (i) or 39(a) of the General Rules. These rules relate to temporary stopgap arrangements which could be made in the cases of emergency, to meet immediate necessity in the interest of administration. The appointments were not made in accordance with Rules, but de hors the Rules.

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14 The Hon'ble Supreme Court therefore followed the well settled law that the Rules do not confer any right to the appointee, to claim seniority over others who were regularly appointed, though later in

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time in accordance with relevant Rules.

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15 The Hon'be Supreme Court also took note of the observation of this Court which reads as under:

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“ 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.”

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16 This Court also 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.

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17 This Court placed reliance on the judgment of the Hon'ble Supreme court reported in A.I.R. 1984 SC 1291 (P.S.Mahal Vs Union of India. This Court held that those officers who were temporarily promoted by transfer will have to step down as and when direct recruitment are made.

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18 The Hon'ble Supreme Court took note of the tabular statement placed before this Court showing 40% of the substantive vacancies were to be filled up by way of direct recruitment and out of the remaining 60%, 50% of the substantiative vacancies were 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 Revenue Commercial Taxes and Religious Endowments Department of Secretariat.

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19 The Hon'ble Supreme Court therefore took note of the fact,

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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.

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20 The Hon'ble Supreme Court also took note of the fact that no material was placed to show that cadre comprised both of permanent and temporary posts.

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21 The Hon'ble Supreme Court affirmed the judgment passed by this Court. The Hon'ble Supreme Court also held that as per the chart placed before the Hon'ble Supreme Court from the year 1972 to 1997, there were only 271 permanent posts as against 422 posts were shown as temporary. In the year 1997, 1080 posts were shown as temporary out of total 1351, and that no other figures were given for the year 1973 and 1974.

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22 The Hon'ble Supreme Court also took note of the fact that no reference was made in the tabular statement, to any G.O. or Rule which fixed the cadre strength shown in the tabular statement. The Hon'ble Supreme Court therefore concluded that if there was increase in the cadre strength from year to year, as contended there should have been different G.Os fixing such cadre strength.

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23 The Hon'ble Supreme Court accepted the contention that the 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. The Hon'ble Supreme Court also held that State had failed to produce even one order of appointment to the temporary post by transfer.

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24 In appeal, the contention of the State was that the appointment by transfer did not exceed quota of 60%. The Hon'ble Supreme Court took note of para 23 of the judgment passed by this Court which reads as under:

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“ In the light of the discussion, the impugned seniority list of A.C.T.Os. has to be revised. It is seen from S.Nos.29 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 principle now formulated that the A.C.T.Os. bearing S.Nos.129 to 519 in the impugned seniority list can be placed above, the petitioners in inter-se seniority list only if they had held the post substantively within the permanent cadre strength allotted to the particular category even before the petitioners commenced their probation. Such of those who do not comply with the above recruitment must be placed below the petitioners in the inter se seniority list.”

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25 The Hon'ble Supreme Court consequently upheld the judgment passed by this Court.

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26 The SLP filed by one individual person and some other SLPs were also ordered to be dismissed.

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27 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 direction given by the Hon'ble Supreme Court referred to above.

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28 The Hon'ble Supreme Court did not entertain the intervening application moved by the employee and permitted them to raise objection to provisional seniority list and to have recourse of such remedy available to them in the event of rejection of their representation.

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29 The necessity to refer to the judgment of the Hon'ble Supreme Court in detail arose, in view of the fact, that the stand of the State is that the impugned order was passed to comply with the directions of the Hon'ble Supreme Court.

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30 In support of the prayer made in the writ petition, in the affidavit, the stand of the petitioner is that the judgment of the Hon'ble Supreme Court was on account of State Government's failure to prove the facts, in support of its case, before the Hon'ble Supreme Court which resulted in dismissal of the appeal.

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31 The reference is also made to another case; i.e. challenge to the Government order in Proc.No.P1/16546/1999, dated 21.07.1999 which was set aside by the erstwhile Tamil Nadu Administrative Tribunal vide order dated 7.6.2000 in O.A.No.5745 of 1999.

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32 The stand of the petitioner is that the State Government there also failed to prove before the Court, that the cadre strength of A.C.T.Os included temporary posts by producing Government orders, vide which the posts were sanctioned.

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33 The seniority list drawn by order dated Proc.No.P1/49719/2000, dated 04.07.2000 were challenged by some direct recruits A.C.T.Os in O.A.No.7243 of 2000 before the Tamil Nadu Administrative Tribunal which were transferred to this Court as W.P.No.2571 of 2007.

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34 This case was subsequently withdrawn. Reference was also made to the contempt case filed before the Hon'ble Supreme Court referred to above. The stand of the petitioner is that it was on account of the failure of the State Government that the dispute in the contempt petition was not decided on merit.

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35 The petitioner in the present writ petition, pleaded in the

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affidavit, that the cadre of A.C.T.Os consists of 271 permanent posts and 1038 temporary posts.

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36 According to the 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.

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37 The petitioner in W.P.No.11618 of 2009 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.

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38 The petitioner started working as A.C.T.O in the year 1987. The petitioner 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.

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39 The petitioner 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.

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40 In the impunged seniority list, the name of the petitioner has not been included in the list of permanent post holders amongst the A.C.T.Os. for the years from 1968 to 2006, but included at Sl.No.159 of the list of A.C.T.Os which have not been considered for permanent vacancies and shown separately with year of appointment.

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41 Inspite of the fact that the petitioner 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 is going to affect the right of the petitioner in the seniority, as the person now to be appointed as A.C.T.O. will also rank senior to the petitioner.

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42 The petitioner is also likely to 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.

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43 In support of the plea that the cadre strength of A.C.T.O includes 1038 temporary posts, reliance is placed on G.O.Ms.No.1374 CT & RE Dept, dated 28.10.1988. The petitioner also pleaded that the appointment of the petitioner to the post of A.C.T.O. was not fortuitous or ad hoc or as a stopgap arrangement, as he was appointed from the list

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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.

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44 The averments is also made, that in case the appointment of the petitioner is really temporary, he would have been replaced from that post by an approved candidate under clause (iii) of the sub-rule (a) of Rule 10 of the General Rules in Part II of the Tamil Nadu State and Subordinate Service Rules, nor he could have been promoted to next higher post. The petitioner also pressed into service in law of the “Doctrine of Legitimate Expectation”.

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45 In the counter filed by the respondents 3 to 7, the averments made in the affidavit are denied. The stand taken by the respondents is that the impugned order has been issued in accordance with orders of the Division Bench of this Court in W.P.No.12786 of 1985 passed in conformity with Rules, as upheld by the Hon'ble Supreme Court in Civil Appeal No.1454 of 1987 decided on 10.10.1999.

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46 It is also pleaded that the writ is bad for non joinder of necessary parties, as the petitioners have challenged the seniority list without impleading the persons to be affected, as party to the writ.

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47 On merit, the stand taken by the respondent is 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 that fourth respondent was also promoted as Commercial Tax officer, now designated as Assistant Commissioner in the year 2004 and further promoted as Commercial Tax officer in the year 2006 from the date of initial appointment.

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48 It is 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 which contains four Annexures as follows:

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The seniority list of permanent holders amongst the ACTOs for the years from 1968-2006 (Annexure – A)/Seniority list of Assistant Commercial Tax officers.

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The principles followed for the drawal of the seniority list – Annexure – B.

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The names of ACTO's who have not been considered for permanent vacancies should separately with the year of appointment (Annexure C)

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The list of objections received with regard to the provisional list and the individuals replies to each of those objections (AnnexureD).

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49 In sum and substance the stand in the counter affidavit filed by the respondents 3 to 7, is that all the contentions raised in the writ petition were raised before the Hon'ble Supreme Court which stood rejected. Therefore, writ is barred by the principle of constructive res judicata.

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50 It is also pleaded case of the respondents 3 to 7 that liberty was granted by the Hon'ble Supreme Court to object to any order by the State in implementing the order in individual cases, but this liberty does not give any right to reopen, the question, which already stood concluded by the Hon'ble Supreme Court.

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51 The second respondent also filed a counter wherein the only contention raised is that the impugned order of seniority has been passed in terms of the order passed by the Division bench of this Court as affirmed by the Hon'ble Supreme Court. The prayer is to vacate the interim injunction and also for dismissal of the writ petition.

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52 In support of the writ petition, Mr.S.P.Asokan, learned counsel for the petitioners vehemently contended that the petitioner was regular appointee to the post of A.C.T.O. by transfer from the list of approved candidates drawn in accordance with General Rule 4 and Special Rule 3 by the competent authority, after considering the claim of all eligible candidates. Therefore, his appointment was not temporary or by way of stopgap arrangement.

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53 The learned counsel for the petitioner further contended that in view of his regular appointment, he availed three promotions, but now in the impugned 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.

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54 The contention of the learned counsel for the petitioner was that there were 271 permanent posts and 1038 temporary posts of A.C.T.O. 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.

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55 The contention of the learned counsel for the petitioner deserves to be noticed to be rejected, as vide G.O. Ms.No.1 dated 4.1.2001, the decision has been taken to retain 2217 temporary posts permanently. However, the order is made prospective.. The order reads

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as under:

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“Establishment – Commercial Taxes Department – Temporary establishment – Permanent retention of the temporary posts which are in existence for more than three years – orders – issued

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Commercial Taxes and Registration (A2) Dept. G.O.Ms.No.1 Dated: 04.01.2010

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Margazhi 20, Thiruvalluvar Aandu 2040 Read:

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1 G.O.Ms.No.51, Commercial Taxes & Religious

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Endowments Dept., Dated 24.1.1980 2 G.O.Ms.No.501, CT & RE Dept., dt.5.6.1980 3 G.O.Ms.No.152, CT & RE Dept., dt.6.2.1982 4 G.O.Ms.No.914, CT & RE Dept., dt.5.8.1982 5 G.O.Ms.No.630, CT & RE Dept., dt.7.6.1983 6 G.O.Ms.No.703, CT & RE Dept., dt.16.7.1986 7 G.O.Ms.No.808, CT & RE Dept, dt.16.7.1987 8 G.O.Ms.No.904, CT & RE Dept, dt.7.8.1987 9 G.O.Ms.No.1077, CT & RE Dept,dt.28.9.1987 10 G.O.Ms.No.782, CT & RE Dept, dt.26.5.1988 11 G.O.Ms.No.38, CT & RE Dept, dt.21.1.1991 12 G.O.Ms.No.470, CT & RE Dept, dt.22.11.1991 13 G.O.Ms.No.472, CT & RE Dept, dt..22.11.1991 14 G.O.Ms.No.384, CT & RE Dept, dt.12.11.1993 15 G.O.Ms.No.99, CT & RE Dept, dt. 10.04.1995 16 G.O.Ms.No.175, CT & RE Dept, dt.23.6.1995 17 G.O.Ms.No.13, CT & RE Dept, dt.14.2.2003 18 G.O.Ms.No.32 CT & RE Dept, dt.17.3.2009

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ORDER:

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In W.P.No.6934/2009 filed by Tvl.N.Govindan, High Court of Madras in its order reference 20^th read above, directed to pass orders on the proposal of Commissioner of Commercial Taxes sent in letter No.V1/66439/03, dated 30.4.2003 within the period of twelve weeks from the date of receipt of copy of the order.

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2 The Principal Secretary and Commissioner of Commercial Taxes has sent the copy of the proposal of the commissioner of Commercial Taxes wherein it has been requested to pass orders for the permanent retention of the 2217 temporary posts which were created and continued in the Government orders 1 to 18 read above.

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3 The Government have examined the proposal of the

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Principal Secretary and Commissioner of Commercial Taxes based on the direction of the High Court of Madras in the reference 20^th read above and decided to accept it. The conditions stipulated for permanent retention of temporary post in G.O.Ms.No.1368 Finance (E II) Department dated 4.11.1963 and G.O.Ms.No.397/Finance (salary) Department dated 4.6.1991 are satisfied in this case.

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4 The Government have therefore, direct that the posts mentioned in the Annexure to this order originally sanctioned in the Government orders first to seventeenth read above and last continued upto 31.12.2009 in the G.O.Eighteenth read above, be retained permanently from the date of issue of this order.

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5 The incumbents of the posts sanctioned in para 3 & 4 above are eligible to draw pay, dearness allowance, house rent allowance, city compensatory allowances and other allowances under the orders in force.

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6 This order issues with the concurrence of the Finance Department vide its U.O.No.572/Secry/ (exp)/2009 dated 29.12.2009.

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(BY ORDER OF THE GOVERNOR)

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56 The learned counsel for the petitioners referred to rules dealing with matter of recruitment to contend that the post of A.C.T.O. is 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.

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57 The contention of the learned counsel for the petitioner therefore was that 1038 temporary posts of A.C.T.O. were to be filled up by way of transfer.

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58 This contention also cannot advance the case of the petitioner, as the dispute in the present case 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.

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59 The contention of the learned counsel for the petitioner that in actual practice, the rule of appointment was violated, which has resulted in confusion, as it will not possible now, to know whether transferee A.C.T.O was appointed to permanent post or to temporary post.

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60 This contention of the learned counsel for the petitioner is again misconceived. 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.

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61 The next contention of the learned counsel for the 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. This contention does not arise, as continuous length of service is to be critieria for fixing seniority in the absence of rule.

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62 It is also the contention of the learned counsel for the petitioner that this Court should lay down criteria of seniority to fill up the lacuna.

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63 This contention again cannot be accepted as it is well settled principle of law that in the absence of rule of seniority, the length of service is to be taken as criteria, provided appointment is to a cadre post.

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64 The contentions raised deserves to be rejected as this Court laid down criteria for fixation of seniority of A.C.T.O., which stands upheld by the Hon'ble Supreme Court.

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65 The contention of the learned counsel for the petitioner that this criteria laid down was to apply only to person selected upto the year 1981 and not thereafter, cannot be accepted, as the principle of law laid down would be binding, even for the subsequent period.

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66 The contention raised by the learned counsel for the petitioner also stand answered by Rule 3(a) of the General Rules which reads as under:

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“35(a) Seniority – The seniority of a person in a service, class or category or grade shall unless he has been reduced to a lower rank as a punishment be determined by the rank obtained by him in the list of approved candidates drawn up by the Tamil Nadu Public Service Commission or other appointing authority, as the case may be, subject to the rule of reservation where it applies. The date of commencement of his probation shall be the date on which he joins duty irrespective of his seniority.

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(aa) 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

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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 service, class, category or grade;

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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 to 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 appointed.

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Provided further that the benefit of the above period shall be availablke to the senior only for the purpose of fixing inter se seniority;

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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.”

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67 It is not understood how a person who is not in the cadre can claim seniority over and above the person who are appointed to the cadre post. As already observed above, the temporary post were made permanent, with prospective effect from 4.1.2010. Nothing has been shown either in the pleading or at the time of argument, as to whether the petitioner/Transferee A.C.T.O. forming 66 2/3% of cadre posts had been denied seniority from the date of their appointment. The order passed by the Hon'ble Supreme Court as also this Court is clear that person appointed to the cadre, would rank senior to direct recruit, provided their appointment is to a cadre post.

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68 The Hon'ble Supreme Court specifically laid down that the seniority of the employees falling in the cadre has to be fixed that is what has been done in the impugned order.

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69 The attempt was also made to contend that the judgment of the Hon'ble Supreme Court will not apply to the petitioners; firstly, for the reason that the petitioners herein were not parties to the proceedings and secondly, for the reason that the decision of the Hon'ble Supreme Court is based on the failure of the State Government to place true facts before the Hon'ble Supreme Court.

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70 This contention of the learned counsel for the petitioners again deserves to be noticed to be rejected, as this Court cannot sit over the judgment of the Hon'ble Supreme Court especially when nothing has been placed on record showing that the cadre of A.C.T.O consists of

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substantive posts and temporary posts.

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71 It was also contended by the learned counsel for the petitioner that in the impugned order different criteria has been adopted while fixing the seniority, i.e. in the case of direct recruits, the date of seniority has been fixed from the date of commencement of probation, whereas in the case of transferee, date is fixed from the date of vacancy in the permanent post.

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72 This contention of the learned counsel for the petitioner again deserved to be noticed to be rejected. The direct recruits were appointed against the substantive vacancies whereas transferees were appointed in excess of their quota by way of temporary appointment. This is what has been clarified by the Division Bench of this Court, which stands affirmed by the Hon'ble Supreme Court.

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73 It was also the contended by the learned counsel for the petitioner that the procedure adopted in framing impugned seniority list violates G.O.Ms.No.624 which lays down 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 by 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:

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(i)Provisions of the date when the vacancies for the direct recruitment are due i.e. Appointment and confirmation of permanent incumbent in another service.

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(ii) Death of permanent incumbent.

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(iii) permanent retention of the temporary post.

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This is after arriving of the available substantive vacancies for direct recruitment that methods of recruitment is to be apportioned.

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74 It is not the case of the learned counsel for the petitioners that 271 permanent posts have been arrived at in violation of G.O. Ms.No.624, therefore, the contention is not relevant.

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75 It is also contended by the learned counsel for the petitioner that the impugned seniority list affects the rights of the the petitioner therefore violates Art.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. 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.

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76 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 cadre, as held by the Hon'ble Supreme Court.

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77 It is further contended by the learned counsel for the petitioner that the cadre of A.C.T.O. would also include temporary posts. In support of this contention, the learned counsel for the 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.

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78 The Hon'ble Supreme Court by holding that the Rule 8(3) to

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be bad, held that:-

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“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”.

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79 This contention again cannot be accepted as the Hon'ble Supreme Court in Company Appeal No.1454 of 1987 decided on 10.02.1999 dealing with the rules in this case has held that the temporary posts do fall in the cadre. Therefore, the petitioner cannot draw any benefit from the said judgment.

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80 An attempt was also made by the learned counsel for the petitioner to convince this Court to hold that the ratio of judgment of the Hon'ble Supreme Court in the case of State of Tamil Nadu Vs S.Sundararaj and four others (supra) would not be applicable to the facts of the present case, as the Hon'ble Supreme Court did not reject the contention, that temporary post in the cadre and also cadre post, on merit. 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.

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81 This contention also cannot be accepted in view of the positive finding by the Hon'ble Supreme Court that the cadre did not have temporary posts. This finding is fortified by G.O.Ms.No.1 dt.4.1.2010 reproduced above, which shows that the temporary post held by the petitioner have been made permanent with prospective effect i.e. from 04.01.2010.

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82 Finally, it was contended by the learned counsel for the 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 petitioner placed reliance on 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:

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“ 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

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time, at regular intervals? If that were done, the undesirable situation which confronts

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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

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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”.

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83 This contention of the learned counsel for the petitioners again cannot be accepted. The reading of the judgment shows that the 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 as in this case also it was held that the persons who are appointed to substantive post though temporary are entitled to benefit of seniority but in the case in hand, the petitioners were not appointed to the substantive post in the cadre.

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84 The judgment of the Hon'ble Supreme Court in the case of A.Janardhana Vs Union of India ((1983)3 SCC 601 on which reliance was placed by the learned counsel for the petitioner, can also be no help to the petitioners, as in that case, again the appellant rendered service on the post included in the cadre, whereas the Hon'ble Supreme Court in this case has recorded a positive findings that the temporary posts are not included in the cadre.

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85 The Tamil Nadu State and Subordinate Service Rules which are relevant, also do not advance the case of the petitioner. The relevant rules read as under:

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(1) A person is said to be “appointed to a service” when in accordance with these rules or in accordance with the rules applicable at the time, as the case may be, he discharges, for the first time

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the duties of a post borne on the cadre of such service or commences the probation, instruction or training prescribed for members thereof.

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Scope of the general rules -The rules in this part shall apply to all State and Subordinate Services and to the holders of all posts, whether temporary or permanent, in any such service appointed thereto before, on or after the date specified in sub-rule (b) of rule 1 in part I except to the extent otherwise expressly provided—

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(a) by or under any law for the time being in force; or

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(b) in respect of any member of such service by a contract or agreement subsisting between such member and the State Government.

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Relation to the special rules-If any provision in the general rules contained in this part is repugnant to a provision in the special rules applicable to any particular service, contained in part III, the latter shall, in respect of that service, prevail over the provision in the General Rules in this part.

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10.Temporary appointments:— a(i) (1) where it is necessary in the public interest owing to an emergency which has arisen to fill immediately a vacancy in a post borne on the cadre of a service, class or category and there would be undue delay in making such appointment in accordance with these rules and the Special Rules, the appointing authority may temporarily appoint a person, who possesses the qualifications prescribed for the post otherwise than in accordance with the said rules.

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#(Added Vide G.O.Ms.No.21, P&AR (S) Dept., 23-1-96 w.e.f.23-1-96)

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Provided that no appointment @ by direct recruitment under this clause shall be made of any person other than the one sponsored by the Tamil Nadu Public Service Commission from its regular or reserve list of successful candidates to any of the posts with in the purview of the Tamil Nadu Public Service Commission.

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@(Added Vide G.O.Ms.No.21, P&AR (S) Dept., 23-1-96 w.e.f.23-1-96) Second Proviso omitted vide G.O.Ms.No.146 P&AR(S) Dept. dt. 13.9.2006 w.e.f. 16.8.82

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Provided ** further that appointment by direct recruitment under this clause (1) in respect of posts

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within the purview of Tamil Nadu Public Service Commission shall be made, only where new posts with new qualifications are created temporarily and where the Tamil Nadu Public Service Commission does not have a regular or reserve list of successful candidates for sponsoring.

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** Substituted vide G.O.Ms.No.146 P&AR(S) Dept. dt. 13.9.2006 w.e.f. 16.8.82

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(2) Omitted (Vide G.O.Ms.No.21, P & AR (S) Dept., 231-96 w.e.f. 23-1-96)

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(ii) Where it is necessary to fill a short vacancy in a post borne on the cadre of service, class or category and the appointment of the person who is entitled to such appointment under these rules and the Special Rules, would involve excessive expenditure on travelling allowance or exceptional administrative inconvenience, the appointing authority may appoint any other person who possess the qualifications, if any prescribed for the said service, class or category.

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*(iii) A person appointed under clause (i) shall be replaced as soon as possible by a member of a service or an approved candidate qualified to hold the post under the rules, and in any case, he shall not be continued for a period of more than one year from the date of his temporary appointment; *(Substituted vide G.O.Ms.No.21, P &AR (S) Dept., 231-96 w.e.f.23-1-96)

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(iv) where it is necessary to appoint an officer against whom an enquiry into allegations of corruption or misconduct is pending, the appointing authority may appoint him temporarily, pending enquiry into the charges against him. The competent authority shall have discretion to make regular appointment in suitable cases.

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(v) A Person appointed under clause (i), (ii) or

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(iv) shall not be regarded as a probationer in such service, class or category or be entitled by reason only of such appointment to any preferential claim to future appointment to such service, class or category. The services of a person appointed under clause (i), (ii) or (iv) shall be liable to be terminated by the appointing authority at any time without notice and without any reason, being assigned.

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(b) and (bb): Omitted.

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(Vide G.O.Ms.No21, P&AR (S) Dept., dt.23-1-96 w.e.f. 23-1-96)

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created in lieu of a whole time post borne on the cadre of a service, class or category shall not be regarded as a probationer in such service nor shall be entitled by reason only of such appointment to any preferential claim to future appointment to such service, class or category.

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(d) Notwithstanding anything contained in these rules, if and when a temporary post is created as addition to the cadre of any service, class or category and the holder thereof is required by the State Government to possess any special qualifications, knowledge or experience, any person who possess such qualifications, knowledge or experience and is considered to be best the fitted to discharge the duties of such post may, irrespective of other considerations, be appointed to that post by the appointing authority, but the person so appointed shall not, by reason only of such appointment, be regarded as a probationer in such appointment, be regarded as probationer in such service, class or category nor shall he acquired hereby any preferential right to future appointment to such service, class or category.

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86 The reading of the Rules referred to above shows that though temporary appointments are permissible but 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. Therefore, in order to claim seniority prerequisite is that the post held by an employee should be a cadre post permanent or temporary.

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87 G.O.Ms.No.1 dated 4.1.1980 further shows that temporary posts, would form part of cadre only w.e.f. 4.1.2010, as it is prospective in nature.

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88 For the reasons stated above, no ground is made out to interfere with the impugned order.

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89 Consequently, all the writ petitions are ordered to be dismissed, but no order as to costs.

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90 Miscellaneous applications praying to dispense with the production of original documents are ordered.

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91 Miscellaneous applications praying to vacate interim injunction are rendered infructuous and disposed of accordingly. All other miscellaneous applications are closed.

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Sd/

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Asst.Registrar

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/true copy/
Sub Asst.Registrar
vaan
To
1 The Secretary to Tamil Nadu Government,
Commercial Taxes and Registration Dept.,
Secretariat, Chennai 600 009.
2 The Principal Secretary and Commissioner of
Commercial Taxes,
Ezhilagam 1 st Floor, Chepauk, Chennai 600 005.
+1cc to Special Govt. Pleader Sr 24923,24924,24925
+1cc to Mr.S.P.Asokan, Advocate Sr 24696
+1cc to Mr.V.Ravikumar, Advocate Sr 24364
PKB,CK(CO)
km/29.4.
Writ Petition Nos.11618 of 2009,
18847 to 18853 of 2009 &
21448 to 21455 of 2009
and M.P.Nos.1, 2 & 4 of 2009
in W.P.No.11618 of 2009,
M.P.No.1 & 1 of 2009 in
W.P.Nos.18847 to 18853 of 2009

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P.Shanmuganathan, v. the Secretary to Tamil Nadu

Case brief

What is this about?

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P.Shanmuganathan, v. the Secretary to Tamil Nadu

Case brief

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What the court decided

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