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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 ..... 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 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. 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. 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. 5. This Court considered the matter in detail and struck down the provisional seniority list. While assailing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so 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 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. 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 time in accordance with relevant Rules. 15. The Hon'be Supreme Court also took note of the observation of this C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ates 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 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. 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. 23. The Hon'ble Supreme Court accepted the contention that the temporary appointments will not by themselves increase the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 O.A. No. 5745 of 1999. 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. 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. 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. 35. The Petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 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. 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". 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 conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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. 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 SI. No. 169. 54. The contention of the learned Counsel for the Petitioner was that there were 271 permanent posts and 1038 tempora ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sted 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 Taxes based on the direction of the High Court of Madras in the reference 20th 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. 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. 5. The incumbents of the posts sanctioned in para 3 and 4 above are eligible to draw pay, dearness allowance, house rent allowance, city compensatory allowances and other allowances under the orders in force. 6 This order issues with the concurrence of the Finance Department vide its U.O. N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme 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 would be binding, even for the subsequent period. 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: 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. (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 recruitment, unless the individual has been reduced to a lower rank as a punishmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bstantive 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 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. 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. 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 incumben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 and Ors. 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 promotes constitute different classes. The question which we have to consider at this stage is not whether direct recruits and promotes appointed as Deputy Engineers in the Bombay and Gujarat service of Engineers belong to different classes but Whether officiating Deputy Engineers belong to class II cadre at all. 79. Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 promotes in the ratio of one to two. In these circumstances, it will be wholly unjust to penalise the promotes for the dilatory and unmindful attitude of the authorities. It is not fair to tell the promotes 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tely 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. (Added Vide G.O.Ms. No. 21, P and AR (S) Dept., 23-196 w.e.f. 23-1-96) 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. @(Added Vide G.O.Ms. No. 21, P and AR (S) Dept., 23-196 w.e.f. 23-1-96) Second Proviso omitted vide G.O.Ms. No. 146 P and AR (S) Dept. dt. 13.9.2006 w.e.f. 16.8.82 Provided further that appointment by direct recruitment under this Clause (1) in respect of posts 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 Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eated 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 be acquired hereby any preferential right to future appointment to such service, class or category. 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. 87. G.O.Ms. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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