2020 (11) TMI 684 - HC - VAT and Sales Tax

Direction to prevent the official Respondents herein from lowering their seniority - Respondent was directly recruited as a Group-II Officer in the post of Assistant Commercial Tax Officer (ACTO) now re-designated as Deputy Commercial Tax Officer(DCTO) , which is the entry level post in the Subordinate Services of the Commercial Taxes Department, and were in the post of Joint Commissioners/Deputy Commissioners when the writ petitions were filed - HELD THAT - Division Bench set out the four principles that were adopted by the Division Bench of this Court in W.P. 12786 of 1975 and affirmed by the Hon'ble Supreme Court in paragraph 4 thereof. In addition, in paragraph 5, the Division Bench of this Court referred to and extracted an earlier order based on the statement of the learned Advocate General. The said extract refers to the statement of the learned Advocate General that the seniority list that was placed before the Hon'ble Supreme Court in the contempt proceedings would operate only up to the year 2010 and would change thereafter on account of the increase in cadre strength both in the year 2010 and 2013. It also records the fact that direct recruits and promotees disagree as to whether the seniority list meets the parameters. After recording the aforesaid, in paragraph 8, the Division Bench directed the State Government to await the outcome of W.A. No.2280 of 2011 and proceed in terms of the four principles set out in paragraph 4. Therefore, it is clear that the Division Bench did not impose an embargo on the State Government so as to prevent the preparation of the seniority list but made it clear that the preparation of the seniority lists should be in accordance with the four principles. The reason for directing the State Government to await the outcome of the judgment in W.A. No.2280 of 2011 is stated in paragraph 2 of the above judgment and will be clear when the nature of the said dispute is examined. The State Government is entitled to prepare the seniority lists by adhering to the applicable general and special rules and the four principles that were formulated by this Court and affirmed by the Supreme Court, including by making revisions in consonance therewith. However, as regards temporary posts, the door was shut firmly by the Supreme Court and as reiterated by the Division Bench in the judgment in W.A. No.2280 of 2011, no revision can be made on that score without the intervention of the Supreme Court - Once the provisional seniority lists are prepared and published, it will be open to the private parties herein to object to and challenge the same, if they are aggrieved in any manner. Appeal allowed.

Summary

Issues Involved:
1. Dispute over seniority between direct recruits and transferees in the Commercial Tax Department.
2. Application of the four principles for drawing up seniority lists.
3. Validity of Government Orders related to seniority lists.
4. Inclusion of temporary posts in the seniority lists.

Issue-wise Detailed Analysis:

1. Dispute over seniority between direct recruits and transferees in the Commercial Tax Department:
The core issue revolves around the seniority between direct recruits and transferees in the Commercial Tax Department. The private respondents, who were directly recruited as Group-II Officers, sought a writ of mandamus to prevent the official respondents from lowering their seniority. The appellants, directly recruited as Group-I Commercial Tax Officers, contended that the seniority lists should be revised according to established principles. The High Court's judgment traced the long-standing conflict over filling promotional posts and preparing seniority lists, highlighting the historical context and previous litigations.

2. Application of the four principles for drawing up seniority lists:
The judgment emphasized the application of four principles established by the Division Bench and affirmed by the Supreme Court for preparing seniority lists:
- Each year should be taken as a unit for fixing inter se seniority.
- Persons not actually appointed in a specific year should not be included in that year's list.
- The date of commencement of probation is the proper criterion for fixing inter se seniority.
- Temporary appointments cannot fill vacancies reserved for direct recruits.
The court reiterated that these principles must guide the preparation of seniority lists, dismissing any deviation from them.

3. Validity of Government Orders related to seniority lists:
The judgment examined several Government Orders (G.O. Ms. No.69, G.O. Ms. No.116, etc.) that were challenged in previous litigations. The Division Bench, in its order dated 28.07.2016, did not uphold or quash these orders but directed the State Government to proceed with preparing seniority lists in accordance with the four principles. The court clarified that the preparation of seniority lists should not be restrained but must adhere to the established principles.

4. Inclusion of temporary posts in the seniority lists:
The inclusion of temporary posts in the seniority lists was a contentious issue. The Supreme Court, in its judgment dated 10.02.1999, rejected the State Government's contention that temporary posts should be considered for seniority. The High Court reiterated that the seniority lists should only include permanent posts, and any attempt to include temporary posts without Supreme Court intervention is impermissible. The court emphasized that the preparation of seniority lists must exclude temporary posts, adhering strictly to the Supreme Court's directives.

Conclusion:
The High Court set aside the learned single Judge's directions that interfered with the preparation of provisional seniority lists. The court allowed the State Government to prepare the seniority lists by reckoning only permanent posts, in accordance with applicable rules and the four principles affirmed by the Supreme Court. The judgment provided a clear directive on the preparation of seniority lists, ensuring adherence to established legal principles and excluding temporary posts.