IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 06.04,2011 CORAM THE HONOURABLE MR. JUSTICE VINOD K.SHARMA Writ Petition Nos.11618 of 2009, 18847 to 18853 of 2009 & 21448 to 21455 of 2009 and M.P.Nos.1, 2 & 4 of 2009 in W.P.No.11618 of 2009, M.P.No.1 & 1 of 2009 in W.P.Nos.18847 to 18853 of 2009 P.Shanmuganathan ... Petitioner in W.P.No.11618 of 2009 M.Padma ..Petitioner in WP 18847/2009 T.M.Rajagopal ..Petitioner in WP 18848/2009 K.Vittaldass ..Petitioner in WP 18849/2009 V.Kaliyamoorthy ..Petitioner in WP 18850/2009 K.Ramji ..Petitioner in WP 18851/2009 E.Andiappan ..Petitioner in WP 18852/2009 S.Paramasivan ..Petitioner in WP 18853/2009 R.Panneerselvam ..Petitioner in WP 21448/2009 A.C.Venkatesan ..Petitioner in WP 21449/2009 G.Banumathi ..Petitioner in WP 21450/2009 S.Kethareswara Prasad ..Petitioner in WP 21451/2009 S.Banumathi ..Petitioner in WP 21452/2009 R.Sivaramalingam ..Petitioner in WP 21453/2009 S.Elangovan ..Petitioner in WP 21454/2009 S.Lalitha ..Petitioner in WP 21455/2009 Vs. https://hcservices.ecourts.gov.in/hcservices/ 1 The Secretary to Tamil Nadu Government, Commercial Taxes and Registration Dept., Secretariat, Chennai 600 009. 2 The Principal Secretary and Commissioner of Commercial Taxes, Ezhilagam 1st Floor, Chepauk, Chennai 600 005. ..Respndents 1 & 2 in WP 11618/2009 18847 to 18853,21448 to 2155/2009 3 S.Viajyakumar 4 R.S.Viswanathan 5 R.Gnanaprakasam 6 P.Sitrarasu 7 P.Kasiviswanathan 8 A.Lakshmipathi ... Respondents 3 to 8 in W.P.11618 of 2009 (Respondents 3 to 7 were impleaded vide order dt.15.7.2009 in M.P.3/2009 in WP 11618/2009 and eight respondent was impleaded vide order dt.4.3.2011)in M.P.1/11 in WP 11618/2009) PRAYER IN W.P.No.11618 of 2009 & 18847 to 18853/2009: The writ petition has been filed under Article 226 of the Constitution of India to issue a writ of Certiorarified mandamus quashing the order of the second respondent in Proc.No.P1/58439/ 2007 dated 04.05.2009 with its annexes; and directing the respondents to prepare a fresh inter-se seniority list of Assistant Commercial tax Officers strictly in accordance with Rule 35(aa) of Part II (General Rules of Tamil Nadu State and General Subordinate Service and the law declared by the Supreme Court by including in that list of transferees appointed permanently or temporarily to either permanent or temporary posts of ACTO in their respective years of appointment without any consideration as to availability of permanent vacancies for their confirmation in service provided that (i) they were not appointed to the posts reserved for direct recruits and (ii) their appointments to the post of ACTO were made from the lists of approved candidates – whether final or provisional / temporary (not subsequently annulled) drawn by the competent authority). WP 21448/2009 to 21455/2009: W.Ps.praying to issue a writ of Mandamus directing the respondents to prepare a fresh inter-se seniority list of Assistant Commercial Tax Officers strictly in accordance with Rule 35(aa) of Part-II- General Rules of Tamilnadu State and General Subordinate Services and the law declared by the Supreme court by including in that list all transferees appointed permanetly or temporarily to either permanent or temporary posts of ACTO in their respective years of appointment without any considertation as to availability of permanent https://hcservices.ecourts.gov.in/hcservices/ vacancies for their confirmations in service provided that i) they were not appoidnted to the posts reserved for direct recurits; and ii) their appointments to the post of ACTO were made from the lists of approved candidates-whether final or provisional/temporary (not subsequently annulled) drawn by the competent authority; Sl.No. W.P.No. Name of the counsel for Petitioners/Respondents 1 11618/2009 Mr.V.Bhiman 2 18847 to 18853/2009 Mr.S.P.Asokan 3 21448 to 21455/2009 Mr.S.P.Asokan Respondent No.1 in all W.Ps. Mr.P.S.Raman, Advocate General for Mrs.Pushpa maran for Spl.G.P. (Taxes) Respondent No.2 in all W.Ps. Mr.R.Muthukumarasamy, S.C. for Mr..V.Ravikumar COMMON ORDER This judgment shall dispose of the following writ petitions, as the common question of law and facts are involved. For the sake of brevity, the facts have been taken from W.P.No.11618 of 2009. Sl.No. W.P.Nos. Name of the Petitioners 1 11618 of 2009 P.Shanmuganathan, 2 18847 of 2009 M.Padma 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 https://hcservices.ecourts.gov.in/hcservices/ Sl.No. W.P.Nos. Name of the Petitioners 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 provisional seniority list, this Court also laid down the following guidelines for drawing the seniority list; 1. Each year should be taken as a unit for fixing the inter-se seniority 2. Persons not actually appointed in a year should not be included in that year. 3. The date on which an officer commences probation is the proper criterion for fixing inter-se seniority. 4. If there are vacancies out of the reservation of 40%/33-1/3% of the permanent cadre of ACTOs for direct recruits, any appointment made either by transfer or promotion cannot be utilised to fill up those vacancies. Such appointments being of temporary character, wherever direct recruits are appointed through Public Service Commission, they being holders of permanent posts by direct recruitment, they have a right to be appointed to whatever posts that are taken out of the 40%/33-1/3% posts reserved for direct recruitment. https://hcservices.ecourts.gov.in/hcservices/ 6 In the operative part of the judgment, this Court directed that on the basis of guidelines in the judgment, “Assistant Commercial Tax Officer at Sl.No.129 to 159, in the impugned seniority can be placed above the writ petitioners over the direct recruits in the inter-se seniority list, only if they hold the post substantively within the permanent cadre strength allotted to the particular category even before the writ petitioners commenced their probation”. 7 The State of Tamilnadu did not challenge the guidelines 1 to 4 referred to above and only challenged the direction given by this Court with regard to Assistant Commercial Tax officer placed at Sl.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 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 https://hcservices.ecourts.gov.in/hcservices/ time in accordance with relevant Rules. 15 The Hon'be Supreme Court also took note of the observation of this Court which reads as under: “Even though Mr.Peter Francis, learned counsel for the petitioners argued that the transferee A.C.T.Os, who had been appointed over and above their quota must have been appointed either under Rule 10 (a) (i) or 39(a) of the General Rules, we find that as the transferees were from the services of the Ministerial service to a subordinate service, they should have been appointed only under the Rule 10(a) (i). This doubt has not been cleared on the side of the respondents as well. But that will not make any differences as the substance of Rule (1) and Rule 39 of the General Rules is the same, in the sense, the former applies to temporary appointment and the latter to temporary promotion. In view of the above, any appointment made, though all persons eligible or qualified by way of transfer in excess of their respective quota, would be otherwise than in accordance with the Rules.” 16 This Court also held that the transferees, who could not be accommodated in the quota reserved for them, cannot claim seniority over direct recruits as and when such direct recruits replace them. 17 This Court placed reliance on the judgment of the Hon'ble Supreme court reported in A.I.R. 1984 SC 1291 (P.S.Mahal Vs Union of India. This Court held that those officers who were temporarily promoted by transfer will have to step down as and when direct recruitment are made. 18 The Hon'ble Supreme Court took note of the tabular statement placed before this Court showing 40% of the substantive vacancies were to be filled up by way of direct recruitment and out of the remaining 60%, 50% of the substantiative 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, https://hcservices.ecourts.gov.in/hcservices/ 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 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 cadre strength and did not rely upon the tabular statement produced by the State of Tamil Nadu. The Hon'ble Supreme Court also held that State had failed to produce even one order of appointment to the temporary post by transfer. 24 In appeal, the contention of the State was that the appointment by transfer did not exceed quota of 60%. The Hon'ble Supreme Court took note of para 23 of the judgment passed by this Court which reads as under: “In the light of the discussion, the impugned seniority list of A.C.T.Os. has to be revised. It is seen from S.Nos.29 to 519, the placements are given to transferee A.C.T.Os. belonging to either 50% reserved category or 10% reserved category. It follows from the principle now formulated that the A.C.T.Os. bearing S.Nos.129 to 519 in the impugned seniority list can be placed above, the petitioners in inter-se seniority list only if they had held the post substantively within the permanent cadre strength allotted to the particular category even before the petitioners commenced their probation. Such of those who do not comply with the above recruitment must be placed below the petitioners in the inter se seniority list.” https://hcservices.ecourts.gov.in/hcservices/ 25 The Hon'ble Supreme Court consequently upheld the judgment passed by this Court. 26 The SLP filed by one individual person and some other SLPs were also ordered to be dismissed. 27 Thereafter, vide order dated 20.10.2008 in Contempt Petition (C) No.263 of 2007 in Civil Appeal 1454 of 1987, the Hon'ble Supreme Court directed the State to 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 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 in the present writ petition, pleaded in the https://hcservices.ecourts.gov.in/hcservices/ affidavit, that the cadre of A.C.T.Os consists of 271 permanent posts and 1038 temporary posts. 36 According to the Rule 2 of the Special Rules to Tamil Nadu Commercial Taxes Subordinate Service, 33-1/3% of the vacancies in the permanent posts are to be filled up by direct recruitment, and remaining 66-1/3% of the vacancies in the permanent posts by transfer. 37 The petitioner in W.P.No.11618 of 2009 was appointed to the post of A.C.T.O by transfer from the Tamil Nadu Ministerial Service in the year 1985 from the list of approved candidates drawn by the second respondent for the year 1985, in accordance with the rules applicable to such appointment. 38 The petitioner started working as A.C.T.O in the year 1987. The petitioner claims that he was appointed against one of the 66- 2/3% vacancies of the permanent posts or 100% vacancies in the temporary posts, which during the year 1985 were reserved for the transferees, and that he was not appointed against 33-1/3% of vacancies in the permanent posts that occurred during the year 1985, for direct recruitment. 39 The petitioner was promoted from the post of A.C.T.O. to the higher post of Commercial Tax officer (CTO) in the year 1998 and further promoted to the post of Assistant Commissioner in the year 2003. 40 In the impunged seniority list, the name of the petitioner has not been included in the list of permanent post holders amongst the A.C.T.Os. for the years from 1968 to 2006, but included at Sl.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 & 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 https://hcservices.ecourts.gov.in/hcservices/ 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 conformity with Rules, as upheld by the Hon'ble Supreme Court in Civil Appeal No.1454 of 1987 decided on 10.10.1999. 46 It is also pleaded that the writ is bad for non joinder of necessary parties, as the petitioners have challenged the seniority list without impleading the persons to be affected, as party to the writ. 47 On merit, the stand taken by the respondent is that the contesting respondents were recruited through Tamil Nadu Public Service Commission as A.C.T.O. in the year 1990 for the vacancies which had arisen for the year 1986 – 1987. During the year 2001 and 2003, the contesting respondents were promoted as D.C.T.O., and that fourth respondent was also promoted as Commercial Tax officer, now designated as Assistant Commissioner in the year 2004 and further promoted as Commercial Tax officer in the year 2006 from the date of initial appointment. 48 It is also pleaded that though provisional inter-se seniority list was published on 01.12.2008 in terms of the order passed by the Division Bench of this Court as affirmed by the Hon'ble Supreme Court, objections were invited and after considering those objections, the impugned order was passed which contains four Annexures as follows: 1. The seniority list of permanent holders amongst the ACTOs for the years from 1968-2006 (Annexure – A)/Seniority list of Assistant Commercial Tax officers. 2. The principles followed for the drawal of the seniority list – Annexure – B. 3. The names of ACTO's who have not been considered for permanent vacancies should separately with the year of appointment (Annexure C) https://hcservices.ecourts.gov.in/hcservices/ 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 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 Sl.No.169. 54 The contention of the learned counsel for the petitioner was that there were 271 permanent posts and 1038 temporary posts of A.C.T.O. 1038 temporary posts have been in existence for several decades i.e. right from 1968. G.O.Ms.No.1368 Finance (E-II) Department dated 04.11.1963 was issued directing that the temporary posts which have been in continuous existence for over three years should be made permanent, but the said G.O. still remains to be implemented. 55 The contention of the learned counsel for the petitioner deserves to be noticed to be rejected, as vide G.O. Ms.No.1 dated 4.1.2001, the decision has been taken to retain 2217 temporary posts permanently. However, the order is made prospective.. The order reads https://hcservices.ecourts.gov.in/hcservices/ as under: “Establishment – Commercial Taxes Department – Temporary establishment – Permanent retention of the temporary posts which are in existence for more than three years – orders – issued Commercial Taxes and Registration (A2) Dept. G.O.Ms.No.1 Dated: 04.01.2010 Margazhi 20, Thiruvalluvar Aandu 2040 Read: 1 G.O.Ms.No.51, Commercial Taxes & Religious Endowments Dept., Dated 24.1.1980 2 G.O.Ms.No.501, CT & RE Dept., dt.5.6.1980 3 G.O.Ms.No.152, CT & RE Dept., dt.6.2.1982 4 G.O.Ms.No.914, CT & RE Dept., dt.5.8.1982 5 G.O.Ms.No.630, CT & RE Dept., dt.7.6.1983 6 G.O.Ms.No.703, CT & RE Dept., dt.16.7.1986 7 G.O.Ms.No.808, CT & RE Dept,