2016 (8) TMI 1514 - HC - VAT and Sales Tax

Validity of provisional seniority list of Assistant Commercial Tax Officer - allegation was that the regular rule for fixing the seniority was not followed by the State Government - HELD THAT - 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. 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. 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 - 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. Appeal dismissed.

Summary

Issues Involved:
1. Challenge to the order of the second respondent regarding inter-se seniority list of Assistant Commercial Tax Officers (ACTOs).
2. Compliance with the directions of the Hon'ble Supreme Court.
3. Determination of seniority and inclusion of temporary posts in the cadre.
4. Application of General Rule 35(aa) of the Tamil Nadu State and Subordinate Service Rules.
5. Alleged violation of Article 335 of the Constitution of India.
6. Prospective effect of G.O.Ms.No.1, Commercial Taxes and Registration (A2) Department, dated 04.01.2010.

Detailed Analysis:

1. Challenge to the Order of the Second Respondent:
The writ appeal was filed challenging the order passed by the second respondent in Proc.No.P1/58439/2007 dated 04.05.2009, which communicated the inter-se seniority list of ACTOs for the year 1968 to 2006. The appellant contended that the seniority list adversely affected his seniority and that of other promotee ACTOs by not including them in the list of permanent post holders.

2. Compliance with the Directions of the Hon'ble Supreme Court:
The impugned order was passed pursuant to the judgment of the Hon'ble Supreme Court in Civil Appeal No.1454 of 1987 dated 10.02.1999. The Supreme Court had confirmed the guidelines laid down by the High Court for fixing seniority, emphasizing that temporary appointments do not confer any right to claim seniority over regularly appointed individuals. The Court directed the State to publish the seniority list in accordance with these guidelines.

3. Determination of Seniority and Inclusion of Temporary Posts:
The appellant argued that the cadre of ACTOs included both permanent and temporary posts and that his appointment was regular and not temporary or ad hoc. However, the Court noted that the Supreme Court had already determined that temporary posts did not form part of the cadre and that only appointments to permanent posts should be considered for seniority. The Court rejected the contention that temporary posts should be included in the cadre for seniority purposes.

4. Application of General Rule 35(aa):
The appellant contended that General Rule 35(aa) of the Tamil Nadu State and Subordinate Service Rules, which determines seniority based on the date of appointment, should apply. The respondents argued that the seniority list was prepared in compliance with the Supreme Court's directions, which took precedence over Rule 35(aa). The Court upheld the respondents' position, stating that the Supreme Court's judgment was binding and that Rule 35(aa) could not override the specific directions given by the Supreme Court.

5. Alleged Violation of Article 335:
The appellant claimed that the seniority list violated Article 335 of the Constitution, which concerns the claims of Scheduled Castes and Scheduled Tribes to services and posts. The Court found this contention to be without merit, noting that the seniority list did not violate any merit drawn at the time of selection and that the appellant's name was excluded because he held a temporary post, not a cadre post.

6. Prospective Effect of G.O.Ms.No.1:
The appellant argued that G.O.Ms.No.1, which made temporary posts permanent prospectively from 04.01.2010, supported his case. The Court rejected this argument, noting that the Supreme Court had already determined that temporary posts were not part of the cadre and that the prospective effect of the G.O. did not alter the legal position established by the Supreme Court's judgment.

Conclusion:
The Court dismissed the writ appeal, upholding the seniority list prepared in compliance with the Supreme Court's directions. The Court emphasized that the matter had reached finality with the Supreme Court's judgment and that any further grievances should be addressed to the Supreme Court for clarification.