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TMI Blog2011 (4) TMI 1518X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 2. The prayer made in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Tax officer placed at SI. No. 129 to 519 in the impugned seniority list. The objection raised was to the expression permanent cadre strength . 8. The contention of the State Government was that the cadre contains not only permanent post, but also temporary posts. 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. 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. 11. The stand of the State was also that temporary appointment to a permanent post was different from regular appointment to a temporary post. 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. 13. The Hon'ble Supreme Court t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led up by way of direct recruitment and out of the remaining 60%, 50% of the sustentative 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. 19. 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. 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. 21. The Hon'ble Supreme Court affirmed the judgment passed by this Court. The Hon'ble Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... publish seniority list in terms of the direction given by the Hon'ble Supreme Court referred to above. 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. 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. 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... luded at SI. 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. 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. 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. 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 and 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 of approved candidates drawn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been considered for permanent vacancies should separately with the year of appointment (Annexure C) 4. The list of objections received with regard to the provisional list and the individuals replies to each of those objections (Annexure- D). 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. 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. 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .26.5.1988 11. G.O.Ms. No. 38, CT and RE Dept., dt.21.1.1991 12. G.O.Ms. No. 470, CT and RE Dept., dt.22.11.1991 13. G.O.Ms. No. 472, CT and RE Dept., dt.22.11.1991 14. G.O.Ms. No. 384, CT and RE Dept., dt.12.11.1993 15. G.O.Ms. No. 99, CT and RE Dept., dt. 10.04.1995 16. G.O.Ms. No. 175, CT and RE Dept., dt.23.6.1995 17. G.O.Ms. No. 13, CT and RE Dept., dt.14.2.2003 18. G.O.Ms. No. 32 CT and RE Dept., dt.17.3.2009 ORDER : In W.P. No. 6934/2009 filed by Tvl.N. Govindan, High Court of Madras in its order reference 20th 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. 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. 3. The Government have examined the proposal of the Principal Secretary and Commissioner of Commercial Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uded in the cadre. 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 criteria for fixing seniority in the absence of rule. 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. 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. 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appointed to the cadre, would rank senior to direct recruit, provided their appointment is to a cadre post. 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. 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. 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 substantive posts and temporary posts. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 Ors. etc. v. 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. 78. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity 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 and Anr. v. Union of India and Ors. (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 imperiled, though unwittingly, the reasonable expectations of the promotes. Wittingly' because, no one appears to have been interested in belittling the contribution of the promotes 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 today could have been easily avoided. The proviso to Rule 7 prescribes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for members thereof. 1. 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- (a) by or under any law for the time being in force; or (b) in respect of any member of such service by a contract or agreement subsisting between such member and the State Government. 2. 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. 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 app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egular appointment in suitable cases. (v) A Person appointed under Clause (i), (ii) or (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. (b) and (bb): Omitted. (Vide G.O.Ms. No. 21, P and AR (S) Dept., dt.23-1- 96 w.e.f. 23-1-96) (c) A person appointed to any part-time post 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. (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 expe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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