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TMI Blog2010 (12) TMI 1082X X X X Extracts X X X X X X X X Extracts X X X X ..... rcial Tax) in the Commercial Tax Department and a further writ of mandamus has also been sought for seeking directions to the respondents to consider and absorb the services of the petitioners in Commercial Tax Department on the post of Assistant Commissioner with effect from the date the services of the petitioners were transferred to the Commercial Tax Department i.e. 10.09.2001. The order dated 27.06.2008 has been challenged on the ground that the same has been passed in a most illegal, arbitrary and malafide manner just to deprive the petitioners from being considered for their merger in the Trade Tax Department and the reasons assigned in the impugned order for repatriation of the petitioners to the Public Works Department (here-in-after referred to as the P.W.D.) on non-availability of post in the Commercial Tax Department are based on unfounded reasons as several posts of Assistant Commissioner are still lying vacant and the respondent no.4 has passed the impugned order without their being any jurisdiction to take decision in the matter as the State Government is the appointing authority of the petitioners and the decision to transfer the services of the petitioners was al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt or unsuitability. It was also mentioned in the order dated 18.09.2001 that the petitioners shall maintain their lien in their parent department and they shall be transferred back to the parent department three months prior to their attaining the age of superannuation. The petitioners were given status of Trade Tax Officer Grade-I (now known as Assistant Commissioner Trade Tax) and after expiry of three years tenure their services were extended vide order dated 02.06.2004 and 10.01.2005 respectively by one year each time. The Principal Secretary, Tax Registration Department wrote a letter to the Principal Secretary, Public Works Department with regard to 18 posts of Assistant Engineer in Public Works Department, who were transferred to the Commercial Tax Department for keeping 18 posts of Assistant Engineer in abeyance so that 18 posts of Assistant Engineer in the Commercial Tax Department be created. The Principal Secretary, Public Works Department sought a report from the Engineer-in-Chief, Public Works Department. The Engineer-in-Chief submitted a report on 21.04.2003 mentioning therein that 10 divisions in Public Works Department have been closed, on account of which, 42 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mercial Tax Department for all times to come and accordingly transfer of services from the parent department to the Commercial Tax Department of the petitioners were for all times to come. The transfer of services from the Public Works Department to the Commercial Tax Department was only one mode of recruitment. By means of counter affidavit, it has been brought on record that the Commissioner, Commercial Tax Department had not on its own passed the order dated 27.06.2008. In fact, he had been authorized to do so by the State Government itself vide its order dated 27.08.2007. The counter affidavit further states that the Trade Tax had taken Assistant Engineers and Junior Engineers from the Public Works Department and Irrigation Department only for the short period of time under specified conditions of service/ posting. The Service Rules, 1983 envisage only two modes of recruitment on the post of Assistant Commissioner. The direct recruitment is to be done on 50% of posts and remaining 50% are to be filled by promotion from the Trade Tax Officers, through Public Service Commission. Since the petitioners were working as Assistant Commissioners for verification purposes only and w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontroversy, within a period of two weeks. We also grant a liberty to resolve the issue at his level irrespective of the pendency o the writ petition". In compliance of order of this Court, the Chief Secretary to the Government of U.P. held meeting on 1.05.2010 which was attended by the Principal Secretaries of Department of Personnel, Irrigation, Tax and Registration, Secretary Finance, Commissioner Commercial Tax, Special Secretary, Public Works Department, Special Secretary, Tax Registration and Additional Legal Remembrancer to the Government of U.P. and after consideration of various issues the High Level Committee chaired by the then Chief Secretary again decided that the petitioners as well as all the employees of Public Works Department and Irrigation, who were posted on transfer of service basis in the department of Commercial Tax had to be repatriated to their parent department. Sri Kalia, learned Senior Advocate while arguing the matter submitted that the decision taken in the meeting dated 11.05.2010 was in fact no decision at all. It is was a reiteration of earlier stand of the respondents on the ground that the service Rules, 1983 did not envisage any procedure of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The record further indicates that after the meeting dated 12.01.2000, another High Level Committee was held on 13.04.2000, wherein it was decided that a separate verification cell was to be created in the Trade Tax Department wherein Assistant Commissioners, Trade Tax Officers Grade-I and Trade Tax Officers Grade-II were to be posted along with the clerical staff, stenographers and other class-IV employees. The incumbents would be such employees as were made available by the Public Works Department and Irrigation Department due to disbanding of various divisions. It was also decided that as per rules, transfer of service within the government did not require any option to be taken from the employee concerned. However, it would be worthwhile to take various Unions into confidence by circulating a proposal and invoking their cooperation in the matter. Also a uniform principle regarding nomination of the employees by the administrative department was formulated so that only junior most employees be sent and there could not be any allegation of pick and choose. The Finance Department expressed its opinion that corresponding number of posts be created in the Trade Tax Department for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e last extension was granted in 2006. The Government turned down the proposal for absorption of these employees in the Trade Tax Department and communicated its decision to the Commissioner, Trade Tax on 27.08.2007. The Commissioner Trade Tax in turn issued the consequential order dated 27.06.2008, which alone has been challenged. Smt. Sangita Chandra, learned Additional Chief Standing Counsel appearing on behalf of the respondents submitted that as is evident from bare perusal of the minutes of meetings dated 12.01.2000 and 13.04.2000 and consequential issuance of government orders dated 23.08.2000 and 29.09.200, the service conditions prescribed by the State Government were clear. There is no such thing as 'deputation' from one government to another government department. The deputation is usually resorted to when services of an employee are lent to Public Sector Undertakings/ Government Company etc. The deputation allowance is paid as per the provisions of the Financial Hand Book in such cases. Transfer of service is resorted to when employees are needed in one government department and another government department is in a position to lend such employees. It is also submitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) SCC 747. It is also submitted that the work of tax assessment was never entrusted to the petitioners independently. The petitioners were only given a small/ abridged training and were not equipped to do assessment work, as is generally required for regularly appointed Assistant Commissioners. Out of 321 vacancies of Assistant Commissioners in the department, a requisition for direct recruitment of 291 Assistant Commissioners has already been sent to the U.P. Public Service Commission. The remaining 27 vacancies are to be filled up by promotion quota also through selection by Public Service Commission under the rules. If the petitioners are absorbed at this stage in the Commercial Tax Department, various anomalies would result with regard to fixation of seniority and consequential promotion etc. with regard to both direct recruits and the promotees in the Commercial Tax Department itself. In response to the submission of learned counsel for the petitioners that the amendment to the Trade Tax Rules, 1983 can very well be done by the government as it had been done earlier with regard to the Trade Tax Officers Grade-I recruited from the limited departmental examinations held in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of an employee to a post out side his cadre is made, on temporary basis, after the expiry of period of deputation, the employee has to come back to his parent department to occupy the same position, unless in the meanwhile he has earned promotion in his parent department as per the recruitment rules. In the case of Inder Singh (supra) the respondent therein had worked for nearly 20 to 28 years in the C.I.D. and, therefore, the Hon'ble Supreme Court suggested that since the nature of work in the police department as well as the C.I.D. was almost similar and the respondents-petitioners therein had earned considerable experience working in the C.I.D., the government could consider the absorption of such employees. However, the caveat was that the rules permitted such absorption. The Hon'ble Supreme Court observed that the authority competent to decide whether an assignment is of deputation is the authority which controls the service or the post from which such employee is transferred. In the case of Mahesh Kumar K. Parmar others vs. S.I.G. of Police others reported in 2002 (9) SCC 458, the Hon'ble Supreme Court observed that the case of certain Head Constables of the Gujarat Pol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to work in another Joint Venture Company wherein Tanmag had 20% of share and also administrative control. The respondents opted for such transfer without any monetary loss and alteration of service conditions with seniority and other benefits. Soon, however, the Joint Venture Company ran into difficulties and was closed down. The respondents had already became employees of the Joint Venture Company and they had lost their lien in the original company, appellant -Tanmag. The respondents filed a writ petition for being absorbed in Tanmag. The learned Single Judge dismissed the writ petition. However, the Division Bench allowed the appeal on the submission made by the respondents that they are entitled to be taken back in Tanmag in terms of the earlier transfer order, which protected the service conditions of the respondents. The division Bench lost sight of the vital fact that there was a permanent transfer of service entailing loss of lien. On the basis of vague arguments advanced regarding legitimate expectation, the Division Bench allowed the appeal filed by the respondents. The Hon'ble Supreme Court observed that "the Division Bench in its anxiety .... to help the respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be absorbed in the Trade Tax Department vide its order dated 27.08.2007. Only the consequential orders were issued by the Commissioner, Trade Tax on 27.06.2008 repatriating the petitioners to their department. In the present case, the consequential order alone has been challenged and the original decision of the State Government dated 27.08.2007 has not been challenged. In the case of Government of Maharashtra vs. Deokar's Distillery reported in 2003 (5) SCC 669 the Hon'ble Supreme Court has held that when writ petitions are filed challenging only consequential orders without challenging the original orders by which the cause of action arose, such writ petitions deserve to be dismissed as not maintainable. On 04.07.2008, this Court issued interim directions directing the authorities to allow the petitioners to work on the post on which they were working prior to passing of the impugned order. From July, 2008 onwards the petitioners continued to serve as Assistant Commissioner, Trade Tax on the basis of said interim order and, therefore, no right can be said to have accrued to the petitioners due to long service rendered in the Trade Tax Department. The petitioners were appointed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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