ition No 461 of 1979
Under Article 32 of the Constitution Dr Y section Chitale R Mohan P N Ramalingam and A T M Sampath for the Petitioner
A V Rangam for the Respondent
The Judgment of the Court was delivered by PATHAK J
The Tamil Nadu Commercial Taxes Service consists of a hierarchy of posts
At the base lies the post of Joint Commercial Tax Officer above it is the post of Commercial Tax Officer then of Assistant Commissioner thereafter of Deputy Commissioner and 779 finally there is the post of Selection Grade Deputy Commissioner
The service is governed by the Special Rules for the Tamil Nadu Commercial Taxes Service the Special Rules
Recruitment to the junior most post the Joint Commercial Tax Officer is made by i direct recruitment and ii recruitment by transfer from Deputy Commercial Tax Officers in the State Commercial Taxes Subordinate Service
Permanent vacancies in the posts of Joint Commercial Tax Officer are filled by direct recruitment and by transfer recruitment in the proportion 12
The higher posts are filled by promotion from officers in the category of posts immediately below
Under rule 2b of the Special Rules all promotions are to be made on the grounds of merit and ability seniority being considered only where merit and ability are equal
Rule 5c provides that every person appointed as a Joint Commercial Tax Officer must be on probation for at least two years on duty in the case of direct recruitment the probationary period commences from the date on which the Officer completes his training and in the case of recruitment by transfer it commences from the date the officer joins duty
Under rule 7b the period of training of a direct recruit does not count towards probation
The petitioner was recruited to the cadre of Joint Commercial Tax Officers as a direct recruit in 1966 and was posted for training which he joined on 6th June 1966 thereafter he completed the probationary period of two years
On 16th August 1972 the petitioner was promoted to the post of Commercial Tax Officer
The second respondent was promoted as Commercial Tax Officer on 17th December 1972
Promotion to the next higher category of posts the Assistant Commissioners followed
The petitioner was promoted as Assistant Commissioner on 14th January 1976 while the second respondent was promoted on 26th August 1976
Meanwhile by GO Ms No 4103 dated 9th July 1973 the Government passed an order notifying the combined inter se seniority list of directly recruited Joint Commercial Tax Officers during the years 1964 to 1967 and the transferee Joint Commercial Tax Officers recruited during the years 1964 and 1966 on the basis of the principles set forth in that order
The seniority list reflected the cyclical order based on rule 2c of the Special Rules that is to say i direct recruit ii transferee recruit iii transferee recruit
The petitioner was shown in the 1966 list at serial No 43 of the overall seniority list and 18th August 1967 was shown as the date of commencement of his probation
The second respondent was also shown in the 1966 list at serial No 52 with 25th January 1967 as the date of commencement of his probation
780 The validity of the combined inter se seniority list was challenged by two writ petitions Writ Petitions Nos 2016 and 2017 of 1972 filed by certain other officers in respect of the ranking from serial number 51 to serial Number 78
The petitioner was not a party to the writ petitions
The writ petitions were allowed by the Madras High Court by its judgment dated 16th September 1975
The High Court took note of the fact that no rules had been framed indicating how the inter se seniority between the direct recruits and the transferee recruits had to be fixed
The High Court quashed the seniority list and directed a fresh determination of the inter se seniority on the basis of three principles 1
Each year should be taken as a unit for fixing the inter se seniority
Persons not actually appointed in the year 1966 should not be included in the 1966 year s list and their seniority should be determined with reference to the date of their joining as Joint Commercial Tax Officers and 3
The date on which an officer commences probation is the proper criterion for fixing the inter se seniority
Taking those principles into account the Government then prepared a fresh combined inter se seniority list and published it by an order set forth in GO No 2228 dated 27th December 1977
The second respondent was now shown at serial number 48 and the petitioner was shown at serial number 49 in the 1967 list
The petitioner apprehensive that the seniority assigned to him in the second combined inter se seniority list of Joint Commercial Tax Officers would prejudice him in the promotions to be made to the category of Deputy Commissioners has challenged the validity of that seniority list
The petitioner contends that the High Court has no power to lay down the principles for determining inter se seniority between direct recruits and transferee recruits and in any event his seniority cannot be determined on the basis of the principles laid down by the High Court inasmuch as he was not a party to the writ petitions
The petitioner also takes exception to the statement contained in paragraph 16 of the State Government s counter affidavit to the effect that the seniority of a Government Officer in the lower category is also the basis for assigning seniority in the higher category
Great emphasis has been laid by the petitioner on the circumstance that he joined as Joint Commercial Tax Officer earlier than the second respondent
781 In our opinion the principles which the High Court culled out as the basis for determining the inter se seniority of Joint Commercial Tax Officers are in the main drawn from the rules governing the service
The petitioner cannot claim that for the purpose of seniority has service must be considered with reference to the date on which he commenced the period of training
The special Rules require that a direct recruit must undergo a period of training
They also provide that he must pass through a period of probation
They further declare that the period of training will not count as a period spent on probation and that the probationary period commences only when the training ends
That being so the relevant date for considering the petitioner s seniority is 18th August 1967
The rules do not contemplate any credit being given for the period of training undergone by a direct recruit and therefore the fact that he was appointed in 1966 is of little moment
The second respondent joined the post of Joint Commercial Tax Officer as a transferee recruit and therefore the date of commencement of his probation was 25th January 1967
Clearly he entered service effectively from an earlier date than the petitioner
Now having regard to the circumstance that the cadre of Joint Commercial Tax Officers is drawn both from direct recruits and transferee recruits it is necessary to have a single combined inter se seniority list
There can be no quarrel with the principle that officers whose effective entry into the service pertains to a particular year should be regarded as a unit in themselves for fixing their inter se seniority
Correctly therefore the petitioner and the second respondent have been placed in the 1967 list
We have already observed that the effective date on which a direct recruit joins as a Joint Commercial Tax Officer is the date on which he commences his probation
In the determination of inter se seniority the High Court has followed the provision in the Special Rules that the posts of Joint Commercial Tax Officers are to be filled in the proportion of 1  2 between direct recruits and transferee recruits
The cyclical order in which the vacancies will be filled on that basis are provided by the order of the Government published in GO Ms No 4103 dated 9th July 1973
Where the rules are specifically silent there is no doubt that the Government is entitled to make an order filling up any lacuna or uncovered gap in the rules
It may also be observed that there is good reason in the principle followed in this case that seniority should be based on the length of effective service
The date of confirmation in a post then loses its relevance
In regard to the contention of the petitioner that he was not a party to the writ petitions decided by the High Court and that therefore the 782 principles laid down in the High Court judgment should not be applied to him we think the submission to be without force
The principles propounded by the High Court are principles of general application and drawn from the rules governing the service and the concepts implied therein
They are not principles applicable peculiarly only to the parties to the writ petitions
Indeed we find no fault with the terms in which the principles have been enunciated
They are principles which could legitimately form the basis of a combined inter se seniority list in respect of Joint Commercial Tax Officers
Having due regard to the considerations mentioned above we are of opinion that the places assigned in the second seniority list to the petitioner and the second respondent truly represent their relative seniority
We may also observe that the second seniority list was prepared after issuing notice to the petitioner and affording him an opportunity to be heard in the matter
It was after all the objections had been considered that the list was finally drawn up
As regards the point whether the seniority of the petitioner in the category of posts higher than the category of Joint Commercial Tax Officers should be determined on the basis of his seniority as Joint Commercial Tax Officer that is a question which does not arise presently
No combined inter se seniority list in respect of the cadre of Assistant Commissioners or of higher posts appears to have been drawn up
There is no material before us to show that it has and if it has what is the position of seniority assigned to the petitioner therein
In the circumstances we think it premature to express any opinion on this point
The second seniority list was prepared on 27th December 1977
The writ petition was filed in this Court in May 1979
The gross delay plainly apparent would constitute another ground for denying relief to the petitioner
But as in our judgment the petitioner fails on the merits we need not go further into the question of laches
The petition fails and is dismissed but in the circumstances there is no order as to costs


Summary:
Under the Special Rules of the Tamil Nadu Commercial Taxes Service recruitment to the junior most post Joint Commercial Tax Officer is made by direct recruitment and recruitment by transfer from Deputy Commercial Tax Officers in the State Commercial Taxes Subordinate Services in the proportion 12
The higher posts are filled by promotion from officers in the category of posts immediately below
Under Rule 2b all promotions are to be made on the grounds of merit and ability seniority being considered where merit and ability are equal
Rule 5c provides that every person appointed as a Joint Commercial Tax Officer must be on probation for at least two years on duty in the case of direct recruitment the probationary period commences from the date on which the officer completes his training and in the case of recruitment by transfer it commences from the date the officer joins duty
Under rule 7b the period of training of a direct recruit does not count towards probation
The petitioner was recruited to the Cadre of Joint Commercial Tax Officer as a direct recruit in 1966 and was posted for training which he joined on 6th June 1966 he commenced his period of probation on 18th August 1967
On 16th August 1972 the petitioner was promoted to the post of Commercial Tax Officer and on 14th January 1976 he was promoted as Assistant Commissioner
The second respondent joined the post of Joint Commercial Tax Officer as a promotee on 25th January 1967 and commenced his probation from that date
He was promoted as Commercial Tax Officer on 17th December 1972 and as Assistant Commissioner on 26th August 1976
In the combined inter se seniority list issued in GOMs
No 4103 dated 9th July 1973 herein the petitioner and the second respondent were shown in the 1966 list at serial numbers 43 and 52 respectively
The validity of the combined inter se seniority list was challenged in two writ petitions Nos 2016 and 2017 of 1972 filed by certain other officers in respect of the ranking from serial numbers 51 to serial number 78
The petitioner was not a party to the writ petition
The writ petition was allowed by the Madras High Court
The High Court took note of the fact that no rules had been framed indicating how the inter se seniority between the direct recruits and the transferee recruits had to be fixed and therefore directed a fresh determination of the inter se seniority on the basis of three principles i Each year should be taken as a unit for fixing the inter se seniority ii Persons not actually appointed in the year 1966 should not be included in the 1966 year s list 778 and their seniority should be determined with reference to the date of their joining as Joint Commercial Tax Officers and iii The date on which an officer commences probation is the proper criterion for fixing the inter se seniority
In the new combined inter se seniority list so prepared and issued by the Government in their order No GO Ms No 2228 dated 27th December 1977 both the second respondent and the petitioner were shown at serial number 48 and serial No 49 respectively in the 1967 List
The petitioner apprehending that the seniority assigned to him in the second combined inter se seniority list of Joint Commercial Tax Officers would prejudice him in the promotions to be made to the category of Deputy Commissioners has challenged the validity of that seniority list
Dismissing the petition the Court  HELD 1
Where the rules are specifically silent there is no doubt that the Government is entitled to make an order filling up any lacuna or uncovered gap in the rules
There is good reason in the principle followed in this case that seniority should be based on the length of effective service
The date of confirmation in a post then loses its relevance
781 F G 2
The principle that officers whose effective entry into the service pertains to a particular year should be regarded as a unit in themselves for fixing their inter se seniority is valid
Correctly therefore the petitioner and the second respondent have been placed in the 1967 List
Since the Special Rules do not contemplate any credit being given for the period of training undergone by a direct recruit and the probationary period commences only when the training ends the year of appointment is of little moment
781 B C D E 3
The principles propounded by the High Court are principles of general application and drawn from the rules governing the service and the concepts implied therein
They are not principles applicable peculiarly only to the parties to the writ petitions
They are principles which could legitimately form the basis of a combined inter se seniority list in respect of Joint Commercial Tax Officers
The places assigned to the petitioner and the second respondent duly represent their relative seniority
The second seniority list was prepared after issuing notice to all including the petitioner and prepared after considering objections raised
782 A C