W.P.No.18209 of 2012:

2.Writ Petition Facts:

(iii)The aforesaid principles enunciated through ruling of this Court was challenged before the Hon'ble Supreme Court of India, which proved the same. Based on the decision of the Hon'ble Supreme Court, the seniority list was issued on 04.05.2009 communicating the inter-se seniority of ACTOs. The said list was challenged in a batch of Writ Petitions which was dismissed by common order passed on 06.04.2011. Against that order, the Writ Appeal was filed.

(iv)Based on the aforesaid order of this Court and the Hon'ble Supreme Court, revised seniority list was issued on 20.01.2012, wherein the Petitioner's name figured in Serial No.70 of the year 2008. The said list is the list of permanent ACTOs re-designated as DCTOs. In the list of 20.01.2012 shown in Annexure 'B', ACTOs who are temporary i.e. Ad hoc and yet to be regularised and confirmed in service and is therefore shown in the temporary list.

(v)The Petitioner was directly recruited through TNPSC as ACTO on 24.11.2008 and completed probation on 03.06.2011. For the purpose of promotion to CTOs the required qualification is passing of Accounts Test and only on passing of which, probation would be declared as satisfactorily completed in the cadre of ACTOs which examination she passed on 03.06.2011. The individuals, who were temporarily promoted by way of transfer on Ad hoc basis, passed the departmental tests earlier as they were already working temporarily, which status continues till date. As far as temporary promotees are concerned, they are yet to be regularised and therefore, the issue of placing them on probation or completion of probation did not arise.

(vi)The Tamil Nadu State Commercial Taxes Subordinate Service Rules prescribed for promotion, the qualifications being (a) an approved probationer in the category of ACTOs; (b) a person should have served as ACTO and should have assessment experience for two years; (c) one should have passed the prescribed departmental examination. The post in the Annexure to the service was re-designated i.e., the DCTO has now been re-designated as CTO. ACTO has since been re-designated as DCTO. List of approved candidates for promotion is to be, as of 1st March of the year concerned. The life of the panel is upto last day of February of the following year. The life of the panel is 1 year. For 2011, the panel lapses on 29.02.2012.

(vii)The Petitioner is duly qualified having completed probation. In respect of the qualification pertaining to 2 years of assessment experience is concerned, she has not been given the posting though she has requested for such post based on a recruitment towards the said post. She was deliberately denied the posting only to benefit the incumbent temporary transferee appointees. She has given to understand that this requirement is exempted by the Government on a case to case basis. The previous direct recruits who had succeeded before this Court and the Hon'ble Supreme Court were given such exemptions viz., one Lakshmipathy and others. She had passed the necessary departmental examinations and therefore qualified for promotion subject to such exemption relating to 2 years assessment experience.

(viii)The Panel of CTO for the year 2011 should have been published on 01.03.2011 which expires on 29.02.2012. Such a panel is now sought to be published after the expiry of the statutory period only to benefit the temporary promotees at the cost of the Direct Recruits whose seniors had ratified the identical issue and succeeded before this Court and subsequently upheld by the Hon'ble Supreme Court and as against the consequent order, this Court has declined to interfere, against which Writ Appeal with application for condone the delay is pending.

(ix)The Respondents to favour the incumbent temporary promotees have manipulated and are manipulating in such a way that Direct Recruited ACTOs presently called as DCTOs are deprived of promotion. The Respondents are now seeking to release the panel of CTOs formerly called as DCTOs for the year 2011 by excluding from consideration the Direct Recruit candidates such as the Petitioner. Therefore, the Petitioner has filed the instant Writ Petition to ensure the principles enunciated by this Court and approved by the Hon'ble Supreme Court in regard to the fixation of seniority of ACTOs (now re-designated as DCTOs) be adhered to.

W.P.No.19088 of 2012:

3.The Petitioners have preferred the instant Writ of Mandamus praying for passing of an order by this Court in directing the Respondents 1 and 2 to revert such temporary/Ad hoc appointees from the cadre of CTOs and above and also those who are juniors in such cadre and are placed above the Petitioners on temporary promotions and further direct the Respondents 1 and 2 to publish the seniority list for the year 2011 and 2012 for CTOs (formerly DCTOs) and effect consequent promotion for the directly recruited DCTOs (formerly ACTOs) including the Petitioners within a stipulated period with all consequential benefits.

4.Facts of the Writ Petition:

5.The Petitioners have filed the present writ of Certiorarified Mandamus in calling for the records of the Second Respondent relating to his orders in Proceedings No.P1/15245/2011-I dated 13.09.2012 with its annexures and to quash the same. Further, they have sought for issuance of an order of this Court in directing the respondents to prepare a single inter se list of all approved candidates in conformity with the Government Order G.O.Ms.No.176 P & AR (Per-S) Department dated 05.07.1994 and General Rules 4, 31 and 35 (aa) without making any distinction between candidates selected for vacancies in permanent posts and temporary posts and to grant any other relief as this Court deems just and proper.

6.The Writ Petition facts:

7.The Counter Averments of Respondents 1 and 2 (in W.P.No. 4879 of 2013):

8.Rejoinder to the Common Counter Affidavit:-

W.P.No.11129 of 2013:

9.The Petitioners have focused the instant writ of Certiorarified Mandamus in calling for the records of the 1st and 2nd Respondents in connection with the impugned rejection orders of the Petitioners objections to the provisional seniority list namely the orders bearing ref.No.bearing proc.No.P1/15245/2011 for the year 2011 and 2012 dated 13.09.2012 issued to each of the petitioners and the consequent final seniority list in proc.No.P1/15245/2011 for the year 2011 and 2012 dated 13.09.2012 and to quash the same. Further, they have sought for passing of an order by this Court in directing the 1st and 2nd Respondents to prepare a final seniority list strictly in accordance with the principles laid down by this Court in W.P.No.12786 of 1985 as confirmed by the Hon'ble Supreme Court in C.A.No.1474 of 1987. That apart, the Petitioners have also sought for passing of an order by this Court in directing the 1st and 2nd Respondents not to make any Ad hoc promotions whatsoever to the detriment of the direct recruits such as the petitioners ignoring the principles of seniority.

10.The Facts of the Writ Petition:

. . . . . It is advantageous to quote para 23 of the Judgment of the High Court which reads as follows:

. . . . . .3) The date on which an officer commences probation is the proper criterion for fixing the inter se seniority

4) If there are vacancies out of the required reservation of 40% in the permanent cadre of A.C.T.OS for direct recruits, any appointment made either by transfer or by promotion cannot be utilized to fill up those vacancies. Such appointments being of a temporary character. Whenever 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% posts reserved for direct recruitment.

(vii)The private Respondents have not commenced probation in the cadre of DCTO (formerly ACTO) and they have not commenced probation in any of the subsequent post held by them namely CTO, Assistant Commissioners, Deputy Commissioners, and their entire service in the Commercial Taxes Department being Ad hoc under Rule 10(a)(i) and Rule 39 (a), later as Ad hoc promotion they cannot have any claim for seniority based on such service however long it may be as the same has been in frustration of the rule and no furtherance thereof.

(viii)The persons who are seniors to the Petitioners (directly recruited candidates of the earlier years between 1990 and 2002) filed Contempt Application before the Hon'ble Supreme Court and the Respondents thereafter, complied with the order by publishing the regular seniority list. Since, the Respondents have not followed the principles laid down by this Court and confirmed by the Hon'ble Supreme Court to the Direct recruits of the year 2008. The Petitioner filed W.P.No.18209 and 19088 of 2012 seeking the relief of Mandamus to revert all Ad hoc promotees and to pave way for direct recruits. At the time of hearing for admission, this Court pass the appropriate order . . . . .2. This Court granted the order of status quo taking note of the long standing dispute between the directly recruited deputy commercial tax officers and the persons, who ere appointed as deputy commercial tax officer by transfer.

3. Mr.Aravind Pandian, learned Additional Advocate General appearing for the official respondents submitted that unless the panel prepared for the year 2011-2012 is given effect to by today, the validity of the panel will lapse. The learned Additional Advocate General further submitted that for the panel year 2012, fixing the crucial date as 01.03.2012, a panel is yet to be drawn and within a period of six weeks from today, such panel will be drawn for each cadres by fixing the crucial date as 01.03.2012 and in the meantime, one post of commercial tax officer will be kept vacant for each of the writ petitioners and the claim of the writ petitioners for promotion will be considered in accordance with law by relaxing the two years assessment experience required for promotion.

4.The learned Senior Counsel appearing for the writ petitioners submitted that if any promotion is made under Rule 39 A of the state and subordinate service Rules, the same may be held valid till fresh panel is drawn for the year 2012 as required by law. There is merit in the contention of the learned Senior Counsel for the petitioners and also the learned Additional Advocate General appearing for the State.

5. In the light of the above submissions, the interim order granted on 13.07.2012 in M.P.No.1 of 2012 in W.P.No.18209 of 2012 is modified to the effect that the official respondents shall keep one post of commercial tax officer for each of the writ petitioners and consider their claim for promotion to further cadre with a period of six weeks by relaxing the two years assessment experience. The official respondents are at liberty to proceed with the approved list in accordance with law subject to further orders to be passed in this writ petition. It is made clear that if any promotion is given to any officer under Rule 39A of the State and Subordinate Service Rules, in any cadre, the said promote cannot pray for seniority or right over the promoted post. It is further made clear that this order will not stand in the way of the official respondents in considering the names of the writ petitioners for promotion in the higher posts under Rule 39 A of the State and Subordinate Service Rules.

(ix)All the Petitioners were promoted as Commercial Tax Officers by the Respondents on 13.09.2012 by way of regular promotion. The panel referred to in the aforesaid order of this Court for the year 2011 for Commercial Tax Officers was an Ad hoc panel under Rule 39(a) of the Tamil Nadu State and Subordinate Service Rules. To put it differently, the Petitioners Panel drawn for the year 2012 is a ' Regular Panel' while panel for the year 2011  2012 referred to in the order of this Court dated 19.07.2012 is an ' Ad hoc panel'.

(x)The Respondents 1 and 2 knowing fully well that the original appointment under Rule 10(a)(i) of the annexure  B candidates was beyond the 66 2/3% is seeking to bring them into the cadre of CTO on the basis of their temporary Ad hoc Service, when they had not even commenced probation in the feeder category with total disregard to the principles laid down by this Court and upheld by the Supreme Court. As such, the Petitioners objected to the Provisional seniority list by the letter dated 15.08.2012. Thereafter, the Respondents are seeking to make promotions to the post of Assistant Commissioners once again on Ad hoc basis completely ignoring the principles of seniority and to favour the in service candidates on the plea that the Petitioners do not have two years of service as Commercial Tax Officers, while the departmental candidates have two years of Ad hoc service of the Petitioners have a service of about one year as Commercial Tax Officers. There is no requirement of two years minimum service for the promotion to the post of Assistant Commissioner. The two years assessment experience was relaxed when the Petitioners were promoted from the post of DCTOs to CTOs. Insofar as the in service Ad hoc appointees/promotees the Government has relaxed the two years assessment service but the Petitioners are not given the same relaxation.

(xi)The Respondents are seeking to aid the in service departmentally recruited candidates viz., Ad hoc CTOs of the year 2010 to be Assistant Commissioner over and above the Petitioners, though on Ad hoc basis. The Second Respondent by means of impugned proceedings dated 13.09.2012 rejected the representations of the Petitioners against the provisional seniority list and the final seniority list was published on 13.09.2012. There is no remedy by way of an appeal against the rejection of their representation and therefore, they have invoked the extra ordinary writ jurisdiction of this Court.

W.P.No.11324 of 2013:

a.14.07.2009  Proceedings P1/24566/2008  promoted from the post of ACTOs (Now DCTOs) to the post of DCTOs (Now CTOs) and kept in the temporary seniority list for the year 2008.

b. 01.10.2009 -Proceedings No.P1/28378/2009 Temporary DCTO (Now CTO) panel for the year 2009 promoted from the post of ACTOs (Now DCTOs) and kept in the Temporary seniority list for the year 2009.

c. 27.01.2010 -Proceedings No.P1/28378/2009-II Additional list for Temporary DCTO (Now CTO) relaxing the relevant rules including assessment experience to benefit temporary promotees namely persons from the office of the Commissioner of Commercial Taxes and kept in the Temporary list for the year 2009.

d. 01.02.2010 -Proceedings No.P1/28378/2009-III Temporary panel for the year 2009 promoted from the post of ACTOs (Now DCTOs) to the post of DCTOs (Now CTOs) and kept in the Temporary seniority list for the year 2009.

e. 20.05.2010 -Proceedings No.P1/7346/2010 Temporary Promotion to the post of DCTOs (Now CTOs) for the year 2010; Temporary Seniority list of 2010.

f. 23.07.2010 -Proceedings No.P1/7346/2010 Temporary Promotion to the post of DCTOs (Now CTOs) for the year 2010; Temporary Seniority list of 2010 (Additional List) g. 30.07.2010 -Proceedings No.P1/18668/2010 Temporary Promotion to the post of DCTOs (Now CTOs) for the year 2010; Temporary Seniority list of 2010 .

h. 03.09.2010 -Proceedings No.P1/33122/2008 promoted from the post of ACTOs (Now DCTOs) to the post of DCTOs (Now CTOs)- Temporary Seniority list for the year 2008.

(ix)The Official Respondents are seeking to make promotions to the post of Assistant Commissioners once again on Ad hoc basis completely ignoring the principles of seniority and to favour the promotees who are in excess of 66 2/3% quota, on the plea that the Petitioners do not have two years of service as Commercial Tax Officers, while the departmental candidates have two years of Ad hoc service. All the petitioners have a service of about one year as Commercial Tax Officers.

(x)For the in service Ad hoc appointees/promotees the Government relaxed two years assessment service, whereas the Petitioners are not given the same relaxation. The crucial date for fixing eligibility to the post of Assistant Commissioner is first day of January every year. The crucial date for fixing eligibility for promotion to the post of Commercial Tax Officer is first day of March every year on which date the probation must have been declared for consideration.

13.The counter pleas of the Respondents 1 and 2 (in W.P.Nos.11129 & 11324 of 2013)

(i)The recruitment for Assistant Commercial Tax Officer is by way of direct recruitment and by way of transfer. The probation between direct recruitment and recruitment by transfer is given in rule 2 (b) of the Special Rules for the Tamil Nadu Commercial Taxes Subordinate Services in the ratio of 33 1/3% and 66 2/3% respectively. The Assistant Commercial Tax Officer is the feeder category to Deputy Commercial Tax Officer and then to Commercial Tax Officer now re-designated as Assistant Commissioner.

(ii)Every person appointed in the category of Assistant Commissioner categories under the Tamil Nadu General Service is by way of direct recruitment and by recruitment by transfer in the ratio of 1 : 2 as per rule 2 (c) of the Special Rules for Tamil Nadu Commercial Taxes Services.

(iii)Till the year 1981, ACTO lists were drawn separately for each devisions. From the year 1982, single unit system was adopted as per Government orders and lists were drawn for the State as a whole. For years upto 1981, a consolidated ACTO seniority list for promotion to DCTO post was drawn up but was challenged by direct recruit ACTOs on the ground that vacancies estimated and reserved for them for each year were filled up by promotees and that these promotions were temporary as no service confirmation or probation declaration was made for these cases. This was accepted by this Court and the Hon'ble Supreme Court in cases filed by the Direct Recruits and the Department respectively which laid down certain guidelines for drawal of the panels.

(iv)The Gist of the orders passed by this Court in W.P.No.12786/1985 (filed by direct recruit ACTOs S.Sundarraj and others) is as follows:

From 1984 to 1991 50 points roster From 1992 to 2008 100 points roster From 2009 to 2010 200 points roster From 1989 to 2002 MBC/DNC Rotation was followed as the Government introduced MBC Rotation in the State for the first time vides G.O.(Ms).No.242, BCW, NMP & SW Department, dated 28.03.1989.

From 2003 onwards Reservation is adopted only for SC/ST candidates.

(xiii)The Government thereby issued orders in G.O.(Ms)No.30, Commercial Taxes and Registration Department, dated 09.03.2012, for drawal of regular panel/seniority list for the post of Commercial Tax Officer/Assistant Commissioners for the period from 1984 to 2010 and objections, if any in this regard, have been called for by the Office of the Principal Secretary and Commissioner of Commercial Taxes. After examining the objections in detail, the said panel/seniority list was confirmed in G.O.(Ms).No.69, Commercial Taxes and Registration Department, dated 04.06.2012. Consequent on the confirmation of regular panel/seniority list, the Government fixed the inter-se seniority between the direct recruits and recruitment by transfer in the regular list of Commercial Tax Officer/Assistant Commissioner for the years from 1984 to 2010 in G.O.(Ms) No.116, Commercial Taxes and Registration Department, dated 24.08.2012.

(xiv)Subsequently, consequential revision in the cadre of Deputy Commissioners (Commercial Taxes) for the years 1987 to 2011 was drawn in G.O.(Ms) No.139, CT & R, dated 02.11.2012, in the cadre of Joint Commissioners (Commercial Taxes) for the year 1988 to 2013 was drawn in G.O.(Ms).No. 16, CT & R Department, dated 27.02.2013 and in the cadre of Additional Commissioners (Commercial Taxes) for the year 1989 to 2013 was drawn in G.O.(Ms).No.70, CT & R Department, dated 19.06.2013 respectively.

(xv)Thus, it may be inferred from the above, that the department scrupulously followed the orders of the Hon'ble High Court of Madras dated 12.06.1986 as well as the orders of the Hon'ble Supreme Court in C.P.No.263 of 2007 in C.A.No.1454/1987 dated 04.03.2009. As the Hon'ble Supreme Court did not prohibit the drawal of temporary panel, the Department also resorted to draw temporary panels in the cadre of DCTOs/CTO/AC/DC etc for filling up the large number of vacancies. Though the panels drawn were temporary, the procedures and guidelines prescribed by the Government were followed. In this manner, the temporary panels of DCTOs, CTOs were drawn for the years 2009 to 2012. Based on the revised seniority list of CTOs proposals for the drawal of temporary panel of ACs for the year 2013 have been sent to the Government.

(xvi)A Writ Appeal in W.A.No.2280 of 2011 was filed by P.Shanmuganathan and others (transferees) against the orders of this Court in W.P.No.11618 of 2009, W.P.No.18847 to 18853 of 2009 and 21448 to 21455 of 2009 dated 06.04.2011 and the same is pending. An another W.P has been filed by the transferees in W.P.No.4879 of 2013, (R.Krishnasamy and 89 others). The Department Strictly observed the guidelines/ directions given by the Hon'ble Supreme Court and also to fill up vacancies by drawing temporary panel without altering or distorting the principles laid down by the Hon'ble Supreme Court.

(xvii) The 3rd Respondent was not included in the permanent list of Commercial Tax Officer but, included only in the temporary list of Commercial Tax Officer in the year 2009 against Sl.No.52 and is junior to the petitioners and only included in temporary list and will have no claim for seniority over the petitioners and would cause no grievance on account of her inclusion. Moreover, the 3rd Respondent was already recruited from the 10% quota reserved for persons recruited from the departments of Secretariat, Office of the Commissioner of Commerical Taxes and Tamil Nadu Sales Tax Appellate Tribunal in the manner specified in the Special Rules for Tamil Nadu Commercial Taxes Subordinate Service. The 3rd Respondent was recruited against this quota for the post of Assistant Commercial Tax Officer (now re-designated as DCTOs) in the year 2002 and subsequently promoted as Commercial Tax Officer against the temporary vacancies for the year 2009. The Petitioners have not questioned the 3rd Respondent's initial selection for the year 2002 and now chosen to question her appointment, which would cause no grievance on account of her inclusion to the Petitioners.

(xviii)The vacancies earmarked for direct recruits to the quota of 33 1/3% of each year for the years from 2001 to 2007 were reported to Tamil Nadu Public Service Commission as per the guidelines laid down in Special Rules and the Petitioners were recruited only through this method. The transferees belonging to 66 2/3 % quota have not encroached on the quota meant for direct recruits and it is also submitted that the transferees such as the 3rd and 4th respondents were appointed only in the temporary lists against their quota. The Hon'ble Supreme Court while passing the judgment in CA No.1454 of 1987, dated 10.02.1999 in the case of State of Tamil Nadu Vs. S.Sundaraj and others , have not been prohibited any where in the judgment regarding operation of temporary lists for filling up of temporary vacancies, but only directed to fill up the substantive vacancies through those persons who have held the post substantively within the permanent cadre strength allotted to the particular category and evolved certain principles in arriving at inter se seniority.

(xix)Pursuant to the judgment of the Hon'ble Supreme Court in C.A.No.1454 of 1987 dated 10.02.1999 and to the orders passed in C.P.No.263 of 2007 dated 04.03.2009 in C.A.No.1454 of 1987, the department prepared a fresh inter-se seniority list of Assistant Commercial Tax Officers (now re-designated as Deputy Commercial Tax Officer) on 04.05.2009 and this was agitated upon in W.P.Nos.11618 of 2009, W.P.Nos.18847 to 18853 of 2009 and 21448 to 21445 of 2009 and finally, these writ petitions were dismissed on 06.04.2011 and that this Court confirmed the said inter-se seniority list. Consequently, further revision was made up to the year 2012 by following the same set of principles and as confirmed by this Court on 06.04.2011. The Petitioners have been given the due seniority in the permanent lists drawn for this purpose for each year and have no objections to their seniority. The direct recruitment as per the Special Rules of Tamil Nadu Commercial Taxes Subordinate Service is being made for each year of their quota and orders obtained from the Government and sent to the Tamil Nadu Public Service Commission for notification. The remaining vacancies after ear-marking the direct recruit quota, are filled through recruitment by transfer. Even for this purpose, the lists are drawn for each year and no Government Rules were flouted. The Petitioners have no objections to their fixation of seniority in the regular panel for permanent vacancies for the year 2012, but are contesting the temporary list drawn for filling up of temporary vacancies in the cadre of Commercial Tax Officer.

(xx)The petitioners are officiating as Commercial Tax Officer only from 04.08.2012 and have put in less than one year of service as on the crucial date i.e. 01.01.2013 for the drawal of panel of Assistant Commissioner (CT) for the Year 2013. Hence, they are technically not qualified for inclusion. Therefore, their names were not recommended for promotion to the post of Assistant Commissioner (CT) by the 2nd Respondent, while sending proposals to the 1st Respondent /appointing authority for the post of Assistant Commissioner (CT). The list of Assistant Commissioner (CT) has not yet been drawn and the Petitioners merely on the basis of apprehension are only trying to stall the drawal of Assistant Commissioner (CT) list till they fulfil the requisite qualification. As per Rule 4(i)(a)(iii) of the Tamil Nadu CT Service Rules, one must have not less then two years of service in all as Commercial Tax Officer, engaged in assessment work. Despite the absence of this pre-requisite qualification, the petitioners is taking claim for promotion and preventing the drawal of temporary list of Assistant Commissioner (CT) for the year 2013 which in any eventuality would be drawn only with candidates as fulfilling the above criteria prescribed in the Special Rules.

(xxi)The ingredients of Rule 4(1)(A) of Tamil Nadu Commercial Taxes Service governing qualification runs thus;-

 (1). Must have passed

(i) The Account Test for executive Officer

(ii) Departmental Test in Commercial Taxes Acts Part,1 II and III

(iii) Book Keeping (2). Must not have completed 57 years of age. This age limit shall be applied with reference to the first day of July of the Year which the report to the Commission about his fitness for includion in the list becomes due (G.O.Ms.No.343, CT&RE, dated 27.06.1991).

(Prior to 1.07.1971 - 47 years) (Prior to 25.04.1979 - 50 years) (Prior to 27.06.1997 - 55 Years) (3) Must have not less than two years of service in all as Commercial Tax Officer, engaged in Assessment work. (xxii)The Petitioners have less than one year of service as on 01.01.2013, which is the crucial date for the drawal of Assistant Commissioner (CT) Panel for the year 2013 and hence, not qualified as per the above Rule position. Further, only those persons who have completed minimum two years of service in the cadre of Commercial Tax Officer have been promoted as Assistant Commissioner (CT) by relaxing the two years of Assessment service and for no candidate, the minimum stipulated two years service norms has been relaxed or waived. The department has already considered the petitioners' representation made in this regard and rejected the same while approving the final seniority list published on 13.09.2012 and that they have filed the present writ petition, which is not maintainable.

(xxiii)While revising the seniority list for permanent vacancies based on the High Court and Supreme Court guidelines for the years from 1968 onwards, the orders of this Court along with Rule position have been strictly implemented and no transferees were placed above the Direct Recruits, if they have not held the post substantively within the cadre strength. As regards the temporary vacancies, which are large in number, they have to be filled up through temporary promotion alone by following the guidelines laid down by the Government and by taking into consideration merit as well as ability. These temporary vacancies are filled up by drawing temporary panel and all the individuals included in the temporary list have duly completed their probation in the initial state itself. Also, as per Rule 31 of Tamil Nadu State and Subordiante Service Rues, an approved probationer shall be considered for confirmation of service immediately after the declaration of his and such confirmation of service shall be made in the entry level post to which he was first appointed. Therefore, it is not necessary to confirm or declare probation at every stage.

(xxiv)The Petitioners are challenging this settled issue and are conveniently not trying to object for the entire revision being made for permanent as well as temporary vacancies and choosing to object only to revision carried out for temporary vacancies (Annexure  B) which would have no bearing on their seniority as they are senior to the temporary vacancy candidates. Added further, as the revision was made in probation to the quota principles as laid down in the Special Rules for Tamil Nadu Commercial Taxes Subordinate Services, there is no case of excess being made either for permanent vacancies or temporary vacancies. No harm or prejudice would be caused to the Petitioners if the panel of Assistant Commissioners (CT) for the year 2013 under preparation is released as the same is only a temporary panel for the purpose of filling in large number of vacancies to enable the State of maximise the revenue collection and mobilise resources.

14.The Counter Averments of the 3rd Respondent in W.P.No. 11129 of 2013:

15.The Gist of Counter Affidavit of Respondents 5 to 15 (in W.P.No.11129 of 2013):

16.The Petitioners have preferred the writ of certiorarified Mandamus in calling for the records of Respondents 1 and 2 in connection with final seniority list of Deputy Commercial Tax Officers presently called as Commercial Tax Officers in Proc.No.P1/15245/2011 dated 18.08.2011 issued by the 2nd respondent and to quash the same. Further, they have also sought for passing of an order of this Court in directing the Respondents 1 and 2 not to effect any Ad hoc or regular promotions for the Ad hoc promotes in Annexure B of the said list with the further direction that the Annexure B Ad hoc appointees are not to be brought in Annexure A list for any year as being in violation of Rules.

17.Facts of the Writ Petition:

The Petitioners' Contentions in W.P.Nos.18209/2012, 19088 of 2012, 11129/2013, 11324/2013 and 20336/2013:

18.The Learned Senior Counsel for the Petitioners contends that the Petitioners were appointed as Assistant Commercial Tax Officers through direct recruitment conducted by the Tamil Nadu Public Service Commission and the Petitioners appeared for the Combined Subordinate Services Examination-I and they were selected and appointed as Assistant Commercial Tax Officers on various dates. The said posts of Assistant Commercial Tax Officers now re-designated as Deputy Commercial Tax Officers to the extent of 1/3 of the cadre strength and 2/3 by transfer.

19.According to the Petitioners, the Division Bench of this Court on 19.06.1996 between S.Sundararaj and 4 others V. Government of Tamil Nadu represented by Secretary, C.T. And R.E. Department, Madras  9 and 28 others, has settled the principles which should govern the fixation of inter-se seniority between the transferees (Ad hoc appointees) and direct recruits and this Court following the principles:

Further, the Hon'ble Supreme Court in the Appeal filed by the department and others in [S.L.P.(C)No.9189/87, 9114/87 and 12013/87 (CA) 1454/87] on 10.02.1999 enunciated the 4th principle which runs as follows:

20.The Learned Senior Counsel for the Petitioners urges before this Court that the provisional inter-se seniority list drawn and communicated in proceedings dated 01.02.2008 confirmed for the years 1968 to 2006 through proceedings dated 04.05.2009 was challenged again by the 'Ad hoc promotees' in W.P.No.11618 of 2009 etc. batch and the same were dismissed by this Court on 06.04.2011 and the Writ Appeals are pending before this Court. Also that, several independent Writ Petitions were filed by the Ad hoc promotees challenging the subsequent/final seniority list dated 18.11.2011 in W.P.No.21787 of 2012 and related matters and they were tagged along with the pending Writ Appeals.

21.The Learned Senior Counsel for the Petitioners submits that the Respondents 1 and 2 lean towards the departmental candidates/Ad hoc promotees and that the Annexure 'B' candidates mentioned in the proceedings dated 18.08.2011 of the 2nd Respondent/Commissioner of Commercial Taxes, Chennai were inducted into the Commercial Taxes Department at the entry level on 'Ad hoc Basis' as per Rule 10(a)(i) of Tamil Nadu State and Subordinate Rules and remain as such 'Ad hoc Appointees' with their 'Lien' in the post of Assistant in the Tamil Nadu Ministerial Service in the cadre of Assistants and therefore in the eye of law, they are not yet entered in the service of the Tamil Nadu Commercial Taxes Subordinate Service till date.

22.It is represented on behalf of the Petitioners that for regular appointment as against the 66 2/3% by way of transfer from the internal candidates in the department, a reference is made to definition clause 2(1) of the Tamil Nadu State and Subordinate Service Rules in and by which, a person is said to be 'appointment to a service' when in accordance with the said rules to a post born on the cadre. As such, the service in an 'Ex-cadre post' is of no avail and it is not an 'appointment to a service'. Therefore, a plea is taken on behalf of the Petitioners that Annexure 'B' candidates are recruited beyond 66 2/3% quota meant for internal recruitment in the cadre of DCTO (formerly ACTO) were not appointed to the Tamil Nadu Commercial Taxes Subordinate Service and therefore, the Annexure 'B' candidates are back door entrants.

23.The Learned Senior Counsel for the Petitioners projects an argument that for regular appointment by transfer Rule 3(c)(i) of the Tamil Nadu Commercial Taxes Subordinate Service Rules is to be complied with and the Annexure 'B' candidates admittedly have not come into service in accordance with the aforesaid Rule.

24.The Learned Senior Counsel for the Petitioners invites the attention of this Court to Rule 3(c)(i) of the Tamil Nadu Commercial Taxes Subordinate Service Rules, which runs as follows:

25.The stand of the Petitioners is that the Annexure 'B' candidates, who are on such Ad hoc service in the subordinate service, are given promotion from the post of ACTO to DCTO (now DCTO to CTO) and DCTO to CTO (now CTO to Advocate Commissioner), AC to DC (now DC to JC), DC to JC (now JC to Additional Commissioner) on Ad hoc basis without resort to regular promotion in accordance to the rules for direct recruits recruited to a superior cadre and thus assistants in ministerial cadre of Tamil Nadu Ministerial Service (who are in Annexure B) are occupying a superior position to those who are directly recruited to a higher cadre.

26.The principle contention advanced on behalf of the Petitioners is that the internal candidates are accommodated yearly from Annexure 'B' list to 'A' list as against 66 2/3% in the internal recruitment quota in the cadre of DCTO (formerly ACTO) which is entry level post of the Subordinate Service.

27.Therefore, it is the submission of the Learned Senior Counsel for the Petitioners that very list of Annexure 'B' candidates in the proceedings of the 2nd Respondent dated 18.08.2011 is an illegal one and the practice of over reaching the law declared by this Court and the Hon'ble Supreme Court in C.A.No.1454/1987 is an impermissible practice.

28.Advancing his arguments, the Learned Senior Counsel for the Petitioners contends that an 'Ad hoc service' cannot be counted for seniority and in fact, the Hon'ble Supreme Court in its findings in C.A.No.1454/1987 has, inter alia, observed that Rule 10(a)(i) or 39(a) of the General Rules relate to temporary stop gap arrangements which can be made in cases of emergency and they are intended to meet an immediate necessity so that the decision may not suffer and in such cases, the appointments are not made in accordance with the Rules but they are made de hors the Rules. Further, it is also observed that neither of the Rules confers any right on the 'Appointee' to claim seniority over others who were regularly appointed though later in accordance with the relevant Rules.

29.The plea of the Petitioners is that an 'Ad hoc appointment' made under Rule 10(a)(i) or 'Ad hoc promotion' under Rule 39(a) is to yield their place to a candidate who is regularly selected in accordance with Rule 36(b) of the Tamil Nadu Subordinate Service Rules or Rule 2 of the Tamil Nadu Commercial Taxes Subordinate Service Rules by way of internal recruitment or by way of direct recruitment in the cadre of ACTO (Now DCTO) as against their 33 1/3% quota.

30.The categorical stand of the Petitioners is that no candidate whether appointed under Rule 10(a)(i) or promoted under Rule 39(a) has been reverted till date, which itself reveals the Government is operating a parallel service outside the rules.

31.Expatiating his arguments, the Learned Senior Counsel for the Petitioners contends that the junior most person in the Annexure A list published for the year 2012 from the 66 2/3% internal recruitment quota in the cadre of ACTO (now DCTO) were already promoted to the post of Assistant Commissioner though they are substantively holding the post of CTO much later than the Petitioners.

32.In this connection, the Learned Senior Counsel for the Petitioners takes a stand that the ingredients of Rule 35(aa) of the Tamil Nadu State Subordinate Service Rules are to be applied whereby the Petitioners are to be promoted on par with their immediate Juniors as they are members appointed in the Subordinate Service.

33.The Learned Senior Counsel for the Petitioners by adverting to Rule 11 of the Tamil Nadu Commercial Taxes Subordinate Service Rules to the effect that 'No Assistant Commercial Tax Officer shall be eligible for promotion as Deputy Commercial Tax Officer, unless he has completed probation as Assistant Commercial Tax Officer and his name has been included in the list of candidates approved by the Board of Revenue under Rule 3(a) as suitable for such promotion', makes a forceful submission that none of the Annexure 'B' candidates in the impugned seniority list have commenced probation in the Tamil Nadu Commercial Taxes Subordinate Service and also that they have not become a members of the service and despite the same, the official Respondents promoted them temporarily with retrospective effect to the post of DCTO (now CTO) which were pleaded in the affidavit in W.P.No.11324 of 2013. Further, the official Respondents are endeavouring to recruit them to the post of Assistant Commissioner which is the state service for which DCTO (now CTO) is the feeder category. Added further, it is the stand of the Petitioners that the Respondents 1 and 2 are doing indirectly what they cannot do directly by maintaining a parallel Annexure 'B' list.

34.Apart from the above, the Learned Senior Counsel for the Petitioners contends that the direct recruit DCTOs were substantially appointed, who are members of the Tamil Nadu Commercial Taxes Subordinate Service are eligible members in Annexure 'A' of impugned seniority list of 18.08.2011 and also in 13.09.2012 list. All the candidates in Annexure 'A' viz., those brought from 66 2/3% quota for internal candidates were appointed in the post of Assistant Commissioner except the Petitioners.

35.By referring to Rule 4(1 (A))(iii) of the Tamil Nadu Commercial Taxes Service, the Learned Senior Counsel for the Petitioners contends that the requirement of 'Must not have less than two years of service in all as Deputy Commercial Tax Officers engaged in assessment work was relaxed by the State Government in favour of 12 inservice candidates vide G.O.(D).No.22 dated 21.01.2010 (as seen from page 19 of the Additional typed set of papers in W.P.No.11324 of 2013) and they are now sought to be promoted to the post of Assistant Commissioner (formerly CTO).

36.Also, the Learned Senior Counsel for the Petitioners submits that on 02.09.2013 the Respondents 1 and 2 issued proceedings by relaxing the entire recruitment rules in favour of Thiru. P.Vijaya Raghavan and posted him temporarily in the post of DCTO (formerly ACTO) with all consequential monetary benefits to him, which is a perverse exercise of power under Rule 39 (a) or 10(a) of the General Rules and also that the said practice is vitiated by 'Malice in Law'.

37.The Learned Senior Counsel for the Petitioners cites the decision of the Hon'ble Supreme Court in Ravi Yashwant Bhoir V. District Collector, Raigad and others , reported in (2012) 4 SCC 407 at page 431 wherein at paragraph 48 it is held as follows:

As such, it is the stand of the Petitioners that the maintenance of Annexure 'B' list itself is vitiated by Malice in Law.

38.The Learned Senior Counsel for the Petitioners proceeds to submit that relaxation is a power vested with the 1st Respondent/State to deal with the situation objectively when such relaxation is required and the Petitioners are few months short of 2 years experience as required under Rule 4(1A) of the Tamil Nadu Commercial Taxes Services for regular appointment to the post of Assistant Commissioner (formerly CTO), but who hold in substantive capacity the post of CTO (formerly DCTO) and had satisfactorily completed the probation in the post of DCTO (formerly ACTO) and the requirement of qualifications can be relaxed and there is no statutory prohibition and ineligibility in this regard.

39.The Learned Senior Counsel for the Petitioners cites the decision of the Hon'ble Supreme Court in P.S.Mahal and others V. Union of India and others , AIR 1984 Supreme Court 1291 at special page 1318 in paragraph 28, wherein and whereunder, it is observed and held as follows:

40.The Learned Senior Counsel for the Petitioners submits that in the permanent list of CTO for the year 2011, the Petitioners/direct recruits in W.P.(MD).No.11324 of 2013 figured in serial No.34 to 67. Likewise, in the permanent list of CTO for the year 2012, the Petitioners figured in Serial No.12 to 30. In the permanent list of CTO for the year 2012 in Serial No.80 the name of M.Subbarayalu is seen and he is functioning as Assistant Commissioner (Ad hoc basis) and further that he is an internal promoted and he is Assistant Commissioner for 3 years. In Serial No.85 of permanent list of CTO for the year 2012 the name of Mathi Alazhan is seen and he is also the Assistant Commissioner. Similarly, in Serial No.145 the name of R.Muthukumaran is seen in the permanent list of CTO for the year 2012 and he moved from 'B' list to 'A' list under 66 2/3 quota.

41.The Learned Senior Counsel for the Petitioners also refers to G.O.(D).No.686, Commercial Taxes and Registration (A1) Department, dated 17.12.2013 are speaks of Relaxation of Rule 6(d) of Tamil Nadu Commercial Taxes Subordinate Service Rules in favour of 150 Deputy Commercial Tax Officers for inclusion in the panel of Commercial Tax Officers for the year 2013. In the said G.O., in paragraph 3, it is mentioned as follows:

Submissions of Official Respondents 1 and 2:

42.The Learned Additional Advocate General appearing for the Respondents contends that pursuant to the orders of the Hon'ble Supreme Court in C.A.No.1454/1987 and also after considering the objections received and also taking into consideration the four principles enunciated by the Hon'ble Supreme Court and further, in tune with the concerned provisions of the General Rules for the Tamil Nadu State and Subordinate Services and the Special Rules for the Tamil Nadu Commercial Taxes Subordinate Service, the provisional inter-se seniority list was drawn and communicated in the proceedings dated 01.12.2008 (which confirmed the seniority for the period from 1968 to 2006 vide proceedings dated 04.05.2009 with certain modifications) and the transferees filed W.P.No.11618 of 2009 etc. batch before this Court and the Writ Petitions were dismissed on 06.04.2011 by this Court, confirming the said seniority last drawn from 1968 to 2006. Thereafter, the revision of inter-se seniority in the cadre of Deputy Commercial Tax Officers for the period from 1981 to 2010 was taken up based on the revised list of Assistant Commercial Tax Officer. Here also, the objections were received and based on the objections of the concerned officials, the seniority list of Deputy Commercial Tax Officer was confirmed for the years from 1981 - 2010 with slight modifications which were communicated through the 2nd Respondent proceedings dated 18.08.2011.

43.According to the Learned Additional Advocate General, the revision of seniority in the cadre of Commercial Tax Officer (now re-designated as Assistant Commissioner) was also made subsequently by the Government adopting the then prevailing Rule of Reservation from the year 1984 to 2010.

44.Added further, the Learned Additional Advocate General proceeds to bring it to the notice of this Court that the 1st Respondent/ Government issued G.O.(Ms).No.30, Commercial Taxes and Registration Department dated 09.03.2012, for drawal of regular panel/seniority list for the post of Commercial Tax Officer/Assistant Commissioners for the period from 1984 to 2010 and after receipt of examination and examining the same, the panel/seniority list was confirmed in G.O.(Ms.) No.69, Commercial Taxes and Registration Department, dated 04.06.2012. Resultantly, the Government, on confirmation of regular panel/seniority list, fixed the inter-se seniority between direct recruits and recruitment by transfer in the regular list of Commercial Tax Officer/Assistant Commissioner for the years from 1984 to 2010 in G.O.(Ms.) No.116, Commercial Taxes and Registration Department, dated 24.08.2012. Furthermore, the consequential revision in the cadre of Deputy Commissioners (Commercial Taxes) in respect of the period from 1987 to 2011 was drawn in G.O.(Ms).No.139, CT & R, dated 02.11.2012, in the cadre of Joint Commissioners (Commercial Taxes) for the year 1988 to 2013 was drawn in G.O.(Ms).No.16, CT & R Department, dated 27.02.2013 and in the cadre of Additional Commissioners (Commercial Taxes) for the year 1989 to 2013 was drawn in G.O.(Ms.) No.70, CT & R Department dated 19.06.2013.

45.The primordial contention of the Learned Additional Advocate General is that the Department has followed the orders of this Court in W.P.No.12786/1985 dated 12.06.1986, the orders of the Hon'ble Supreme Court in C.P.No.263 of 2007 in C.A.No.1454 of 1987 dated 04.03.2009 and in fact, the Hon'ble Supreme Court has not prohibited the drawal of temporary panel and as such, the Department drew temporary panels in the cadre of DCTOs/CTO/AC/DC etc. for filling up the large number of vacancies and in this regard, the procedures and guidelines specified by the Government were followed. Only, in this fashion, the temporary panels of DCTOs, CTOs were drawn for the years 2009 to 2012. Based on the revised seniority list of CTOs proposals for the drawal of temporary panel of Acs for the year 2013 have been sent to Government.

46.The Learned Additional Advocate General takes a plea that the Petitioners have not questioned the 3rd Respondent's (in W.P.No.11129 of 2013) initial selection for the year 2002 and also that she was not included in the permanent list of Commercial Tax Officer but was included in the temporary list of Commercial Tax Officer during the year 2009 in Serial No.52 and his junior to the Petitioners. Moreover, she has no claim for seniority over the Petitioners and also that she was already recruited from the 10% quota reserved for persons recruited from the Departments of Secretariat, Office of the Commissioner of Commercial Taxes and Tamil Nadu Sales Tax Appellate Tribunal in the manner specified in the Special Rules for Tamil Nadu Commercial Taxes Subordinate Service. That apart, the Petitioners/Direct Recruits were given their due seniority by following the Hon'ble Supreme Court Judgment in C.A.No.1454 of 1987 dated 10.02.1999 and this was not challenged by them.

47.The plea of the Respondents is that the list of Assistant Commissioner (Commercial Taxes) has not yet been drawn and that the Petitioners based on apprehension are making an attempt to stall the drawal of Assistant Commissioner (CT) list till they fulfil the requisite qualification.

48.The Learned Additional Advocate General proceeds to submit that only those persons who have completed minimum 2 years of service in the cadre of Commercial Taxes Officer were promoted as Assistant Commissioner (CT) by relaxing the 2 years of assessment service and for no candidate, the minimum stipulated 2 years service norms was relaxed or waived.

49.The Learned Additional Advocate General takes an objection that the Petitioners have no locus standi to file the present Writ Petitions because of the simple fact that they do not have minimum 2 years of service in all as Commercial Tax Officer engaged in assessment work and therefore, the Writ Petitions filed by them are per se not maintainable to lend support to the contention that the Petitioners have no enforceable legal right to maintain the Writ Petitions, the Learned Additional Advocate General cites the Division Bench Judgment of this Court in D.Jagnnathan V. S.Sattanathan, (2013) 7 MLJ 385 at special page 392 wherein in paragraph 8.4 (9 & 10), whereby and whereunder, it is observed as follows:

50.He also seeks in aid of the decision of this Court in Haryana State Electricity Board and another V. Gulshan Lal and others , (2009) 12 Supreme Court Cases 231, at special page 245, in paragraph 34 to 36, it is observed and held as follows:

51.The pith and substance of the Learned Additional Advocate General is that the Petitioners have not questioned the initial selection of R.3 to R.7 (in W.P.No.11324/2013) and also that, R.3 to R.7 have not been included in the permanent list and out of R.3 to R.6 one has retired and as a matter of fact, the Official Respondents are not disturbing the inter-se seniority and in fact, the Writ Petitioners/Direct Recruits would stand on the higher footing and for the period from 1968 to 2006 the seniority list was confirmed and now the Respondents 1 and 2 are not going to determine the seniority. Also that, the Respondents 1 and 2 are filling up the vacancies and last year in 2012 the Respondents 1 and 2 accommodated both the direct recruits and the promotees and at that point of time, there were substantial vacancies and further everybody upto CTO was given the relaxation during the last year. Further, as per Rule 4(1)(A) of the Tamil Nadu Commercial Taxes Service one of the qualifications required is that in order to promote as Assistant Commissioner (CT) a person must have minimum requirement of 2 years of service engaged in assessment work and this cannot be relaxed in the case of Petitioners because in the promotion post of Assistant Commissioner one should have minimum requirement of 2 years of service engaged in assessment work as stated supra and there is nothing to show on record that the Respondents 1 and 2 for the post of Assistant Commissioner they have relaxed the 2 years of service in all as Commercial Tax Officer engaged in assessment work.

52.During the last leg of argument, the Learned Additional Advocate General submits that no prejudice would be caused to the Petitioners if the panel of Assistant Commissioner (CT) for the year 2013 under probation is released and the said list is only a temporary panel for the purpose of filling in large number of vacancies to enable the State to maximise the revenue collection and mobilise resources.

The Contentions of Respondents 5 to 15 (in W.P.No.11129 of 2013):

53.According to the Learned Counsel for the Respondents 5 to 15, the Writ Petition is not maintainable in regard to the provisional seniority list because it is tentative in nature and also it does not decide the right of parties. Further, it is represented on behalf of the Respondents that 1970 is the crucial year and whether the Writ Petitioners have fulfilled the 2 years of service as Commercial Tax Officer engaged in assessment work is to be seen.

54.Added further, it is the plea of the Respondents 5 to 15 that in the instant case on hand, the notification in regard to the recruitment of direct recruits pertains to the year 2008 and during the period from 2001 to 2007 the posts were not filled up and as a matter of fact, the selection process started only in the year 2008.

55.The Learned Counsel for the Respondents 5 to 15 contends that the direct recruitment can be applied only in regard to the substantial vacancies and in any temporary vacancies the direct recruits cannot be appointed.

56.The main stand of the Respondents 5 to 15 is that the Petitioners have not completed the requisite 2 years service as on 01.01.2013 as Commercial Tax Officer engaged in assessment work and when they had not satisfy the qualification criteria fixed for promotion as Assistant Commissioner (as per Rule 4(1)(A) of the Tamil Nadu Commercial Tax Service, then, they have no locus standi to file the Writ Petitions in question.

58.Also that, the Petitioners cannot claim Ad hoc promotions and the Ad hoc promotions can be given only to the promotees. Continuing further, it is the plea of the Respondents 5 to 5 that the drawal of temporary panels for vacancies arising in temporary posts is not prohibited and only when substantive vacancies are filled, the claim for regular promotion would arise.

59.In short, the contention of the Respondents 5 to 15 is that the Petitioners cannot compel the department to grant them promotion ahead of persons in 2/3 quota, when they are not eligible to be considered during the year 2013. Further, the Petitioners are trying to unsettle the settled seniority and in the 2 Annexures to the seniority list, the inter-se seniority would be fixed only after finalising the quota meant for recruits by transfer.

The submissions of Respondents 8 to 18 in W.P.No.11324 of 2013 (Respondents 16 to 26 in W.P.No.11129 of 2013):

60.The Learned Counsel for the Respondents 16 to 26 submits that the Respondents were all appointed as Junior Assistants and their services were confirmed in that post and they secured their promotion as Assistants and then, they got further promotion and during the year 1989 their appointments were regular and they were confirmed.

61.The Learned Counsel for the Respondents 16 to 26 submits that in the proceedings of the Assistant Commissioner (CT Department) dated 10.04.1989 in Serial No.3, name of S.Kathiravan, Junior Assistant is found and that he got appointed on 01.07.1987 and he was regularised with effect from 01.07.1987 forenoon. Also that, the Learned Counsel for the Respondents 16 to 26 invites the attention of this Court to the proceedings of the Assistant Commissioner (CT) Zone VI dated 26.08.1989 wherein one M.S.Kathiravan, Junior Assistant (Office of the Commercial Tax Officer, Luz) was declared to have completed a period of probation satisfactorily in the cadre of Junior Assistant on the afternoon of 30.06.1989. Further, the said individual was informed that he is eligible to draw incremental arrears with effect from 01.07.1989.

62.In effect, the contention of the Learned Counsel for the Respondents 16 to 26 is that the Respondents services in entry posts were confirmed and in short, the Respondents were appointed during the year 1987 as Junior Assistant (recruited through TNPSC) and confirmed in the year 1989.

63.The Learned Counsel for the proposed Respondents seeks in aid of the G.O.Ms.No.176, P & AR Department dated 05.07.1994 wherein in paragraph 2, it is mentioned as follows:

Further, in the aforesaid G.O., under the head 'Seniority', it is mentioned that 'since there is confirmation in the entry grade, seniority shall continue to be determined on the basis of confirmation in that grade'.

64.Also, it is mentioned, in paragraph 3 of the aforesaid G.O., that 'The revised procedure relating to confirmation outlined above shall not apply to the cases appointments made on adhoc basis, i.e., it is only the appointments made on regular basis which shall come within the purview of these instructions. Persons appointed against the posts in purely temporary organisations are outside the purview of the revised procedure outlined in the above instructions'.

65.The Learned Counsel for the Respondents 16 to 26 takes a plea that confirmation need not be done at every stage and therefore, it is not open to the direct recruit CTOs to contend that persons like the Respondents in each post are to be confirmed.

66.It is the submission of the Learned Counsel for the Respondents 16 to 26 that by means of proceedings of the Deputy Commissioner (CT), Chennai (Central) Division that the Junior Assistants/Typists of Chennai (Central) Division, who are fit for promotion as Assistants, mentioned in the serial numbers thereto were included in the Temporary panel of Assistants for the year 1996 and in the said proceedings in Serial No.19 the name of M.S.Kathiravan, Junior Assistant, Zone-XI is seen. Subsequently, in the proceedings of Commissioner of Commercial Taxes, Chennai dated 13.12.2003, the names of Assistants G.Leelavathy, Sripathy Rajan, A.Panneerselvam, K.Sadayan and M.S.Kathiravan are found. They were included in the Assistant Commercial Tax Officers for the year 2000 for the State Unit. Also, in the aforesaid proceedings, it is categorically mentioned that the seniority of the aforesaid individuals and others in the list of Assistant Commercial Tax Officers for the year 2000 would be fixed separately on receipt of final orders in the pending W.P.No.11296 to 11298 of 2003 and subject to the outcome thereon.

67.The Learned Counsel for the Respondents 16 to 26 contends that since the Respondents seniority was not fixed, W.P.No.11052 of 2009 was filed by one R.Rani and 4 others before this Court praying for passing of an order by this Court in directing the Respondent/Principal Secretary and Commissioner of Commercial Taxes, Chennai to fix the inter-se seniority in the combined panel of ACTO for the year 2000 by disposing of the representation submitted on 18.01.2007 and this Court directed the Respondent to consider the representation and pass orders on merits and also in accordance with law and also in the light of the orders passed in W.P.No.11296 to 11298 of 2003 dated 28.02.2005 etc.

68.The Learned Counsel for the Respondents 16 to 26 refers to the proceedings of the Principal Secretary/Commissioner of Commercial Taxes, Chennai dated 14.07.2009, in and by which, a list of approved candidates and promotion list was drawn to the post of Commercial Tax Officers for the panel year 2008. Also, in the said proceedings, it is mentioned that 'The Joint Commissioners (CT) including enforcement are requested to communicate this list to all the officials concerned, whose names are included in the list as well as to all officials senior to the junior-most person included in the list, whose names are not included in this list, as laid down as Rule 4(a) of the General Rules for the TN State and Subordinate Services'.

69.At this stage, the Learned Counsel for the Respondents 16 to 26 brings it to the notice of this Court that in the promotion list panel of 2008 to the post of CTO in serial Nos.71, 73, 75, 76, 86, name of M.Prabakaran, Sripathy Rajan, A.Panneerselvam, K.Sadayan and M.S.Kathiravan are found (some of the Respondents).

70.The Learned Counsel for the Respondents 16 to 26 takes a stand that all the appointments of the Respondents are made as per Service Rules and further that in terms of G.O.(Ms).No.71 dated 30.07.2008 the posts of Joint Commissioner, Deputy Commissioner, Assistant Commissioner, Commercial Tax Officer, Deputy Commercial Tax Officer were redesignated as Additional Commissioner, Joint Commissioner, Deputy Commissioner, Assistant Commissioner, Commercial Tax Officer.

71.The Learned Counsel for the Respondents refers to Section 6 of the Tamil Nadu Commercial Taxes Service Rules which relates to Assistant Commercial Tax Officer and CTO. Further, by adverting to Rule 4(a)(1a)(iii) of the Tamil Nadu Commercial Taxes Service Rule, the Learned Counsel for the Respondents 16 to 26 submits that for recruitment by transfer from the Tamil Nadu Commercial Taxes Subordinate Service, one should possess not less than 2 years of service in all as Deputy Commercial Tax Officers engaged in assessment work and in fact, the Petitioners were appointed as CTO only on 04.08.2012 and they would complete 2 years only in 2014 and therefore, the Petitioners are not qualified as per Tamil Nadu Commercial Tax Service Rules. In effect, the Petitioners are not satisfying the rule requirement and therefore, they are not entitled for promotion.

72.At this stage, the Learned Counsel for the Respondents 16 to 26 cites the decision of the Hon'ble Supreme Court in R.Prabha Devi and others V. Government of India and others , AIR 1988 Supreme Court 902(1) at special page 908 wherein in paragraph 14 and 15, it is observed as follows:

It has also been observed:

73.He also relies on the decision of the Hon'ble Supreme Court in P.Dharni and others V. Government of Tamil Nadu and others , (2013) 5 MLJ 445 (SC) at page 458 wherein in paragraph 22 and 23, it is, among other things, observed as follows:

74.The Learned Counsel for the Respondents 16 to 26 places reliance on the decision of the Hon'ble Supreme Court in Parmod Kumar V. U.P. Secondary Education Services Commission and others, (2008) 7 Supreme Court Cases 153, at page 154 wherein it is held as follows:

75.The Learned Counsel for the Respondents 16 to 26 contends that the Petitioners, who do not satisfy the Rule Requirement of Rule 4(1)(A)(iii) of the Tamil Nadu Commercial Tax Service, the qualification of promotion as Assistant Commissioner from the post of Deputy Commercial Tax Officer to the effect that 'one must have not less than 2 years of service in all as Commercial Tax Officer, engaged in assessment work' cannot seek the relief of mandamus and in fact, the power of relaxation vested with the 1st Respondent/Government of Tamil Nadu cannot compel to be performed and also that the Court of Law cannot ask the Government to relax the Rules. Further, on facts, there are 221 vacant posts and for nearly 1 = years, the Government is unable to fill up the posts.

The 3rd Respondent's Submission in W.P.No.11129 of 2013:

76.The Learned Counsel for the 3rd Respondent submits that as on date, none of the Petitioners are qualified and the role of Commercial Tax Officer is very crucial and to seek the relief of Writ of Mandamus in law, there must be a correspondent duty or right on the Petitioners to seek the said relief and in fact, the Writ Petitioners has stalled the others promotion and every time when the panel is prepared, the Petitioners scuttled the process and in fact, none of the direct recruits can be sent to the temporary list and further, the probation can be only once in a service. Also that, the promotees are only to be promoted within their 2/3 quota and as such, they do not infringe the rights of the Petitioners.

The Petitioners' Contention in W.P.No.4879 of 2013:

77.The Learned Counsel for the Petitioners submits that the direct recruit DCTOs and Transferee DCTOs have approached this Court with an identical prayer in quashing of CTOs (Commercial Tax Officers) Panel for the years 2011 & 2012 in the impugned Proceedings No.P1/15245/2011-I & II dated 13.09.2012 of the 2nd Respondent/ Commissioner of Commercial Taxes. However, the reasons for that prayer and consequent directions sought for are different.

78.The Learned Counsel for the Petitioners urges before this Court as far as the transferee DCTOs (Petitioners in W.P.No.4879 of 2013) are concerned, they questioned the drawing of two separate lists one allegedly for permanent posts and another allegedly for the temporary posts - instead of making one single of proved candidates under Rule 4.

79.According to the Learned Counsel for the Petitioners, the Rule 1 of Tamil Nadu State and Subordinate Rules speaks to the effect that those Rules shall apply to the temporary or permanent holders of all posts and further, Rule 4 of the said Rules envisages that while estimating the number of vacancies for any list of approved candidates the number of permanent posts as well as the number of temporary tests in existence should be taken into consideration.

80.In this connection, the Learned Counsel for the Petitioners takes a plea that Rule 4 of the Tamil Nadu State and Subordinate Service Rules visualises only one single list for all approved candidates and not separate lists for permanent posts and temporary posts. As such, the drawing of two separate lists instead of making one single list of approved candidates is in violation of Rules 1 and 4 of Tamil Nadu State and Subordinate Service Rules.

81.The Learned Counsel for the Petitioners takes a stand that temporary appointees to both permanent as well as temporary posts cannot normally claim any right to seniority on the basis of their temporary service. However, the regular appointees to both permanent as well as the temporary posts are entitled to seniority right mentioned in General Rule 35 of the Tamil Nadu State and Subordinate Service Rules governing 'Seniority'.

82.At this juncture, it is represented on behalf of the Petitioners that although the holders of permanent and temporary posts were enjoying equal rights in all matters including seniority, promotion etc. prior to G.O.Ms.No.176 P & AR (Per. S) Department dated 05.07.1994, there was one single factor viz., confirmation (full membership) that necessitated identification of permanent posts, but the said factor removed by the aforesaid G.O. making temporary and permanent posts absolutely identical in all aspects.

83.The Learned Counsel for the Petitioners brings it to the notice of this Court that the confirmation procedure has been simplified by delinking it from the availability of the permanent posts and this was first brought about in respect of Central Government employees by the Ministry of Personnel, Public Grievances (Department of Personnel & Training's O.M.No.18011/1/86  Estt (D), dated 28.03.1988.

84.The Learned Counsel for the Petitioners proceeds to state that in the aforesaid Office Memorandum dated 28.03.1988, it is, inter alia, mentioned that '..... the exercise of identification of permanent vacant posts as well as convening of meetings of DPCs to consider the confirmation of employees against them has become a time-consuming and complicated procedure which has to be gone through under the existing rules before the permanent status is conferred upon a Government employee. The delays and complexities involved in complying with procedural requirements of confirmation often result in a situation where an employee continues to officiate in successive higher grades for years together while he is confirmed only in the grade he entered the service'.

85.Also that, a task force (set up in 1976 vide Ministry of Finance Order No.F.1 (5)/75-spl. Cell dated 5.1.1976) made the following recommendations:

86.The Learned Counsel for the Petitioners submits that the G.O.Ms.No.176 P & AR (Per. S) Department dated 05.07.1994 adopted the aforesaid Official Memorandum dated 28.03.1998 and resultantly, the Preliminary Rule 2(8) of the Tamil Nadu State and Subordinate Service has been amended in G.O.Ms.No.237 P & AR (S) Department dated 17.06.1996 with effect from 05.07.1994 by stating that 'Full Member', a member whose service has been confirmed in the service in which he has been appointed. Indeed, the aforesaid G.O.Ms.No.176, P & AR (Per. S) Department dated 05.07.1994 has brought about a revolutionary change by declaring that the appointees to the temporary posts also Full Member of Service. That apart, keeping in tune with the aforesaid Government Order, General Rule 31 of the Tamil Nadu State and Subordinate Service Rules dealing with 'Appointment of Full Members' has been amended by Government Order G.O.Ms.No.125 P & AR (S) Department dated 10.07.2000 to the effect that 'Subject to the provisions of Rules 9 and 35(a) an approved probationer shall be considered for confirmation of service immediately after the declaration of his probation. Such confirmation of service shall be made in the entry level post to which he was first appointed' etc.

87.The Learned Counsel for the Petitioners makes a forceful submission that when confirmation viz., Full Membership to the Service was given to the appointees in respect of temporary posts, it is not correct to state that they are not members of service so as to become eligible to have their seniority fixed as per General Rule 35(a) which apply to all members of Government Service and as such, to relegate them in a separate list in the impugned order dated 18.08.2011 is in clear violation of G.O.Ms.No.176, P & AR (Per. S) Department dated 05.07.1994, Primary Rule 2 (8) and General Rule 31.

88.The Learned Counsel for the Petitioners contends that the direct recruitments were made for vacancies that arose in only 90 posts of DCTOs as per Special Rule 2 but the vacancies that arose in the remaining 1219 posts went for transferees as per Special Rule 2 and General Rule 6(c). Further, out of vacancies in the posts of DCTO that arise during any year only 7% of those vacancies go for direct recruits and the remaining 93% got for promotees. Therefore, it is not correct to contend that Promotee DCTOs who became DCTOs as early as in 2005 usurped the vacancies reserved for direct recruits who were appointed only in the year 2008.

89.The Learned Counsel for the Petitioners brings it to the notice of this Court that inasmuch as confirmation was delinked from the availability of permanent posts by the above G.O.Ms.No.176 dated 05.07.1994, it is absolutely impossible to identify the vacancies in permanent posts and this was mentioned in the order of the of the Administrative Tribunal in O.A.No.5745 of 2999 dated 07.06.2000 wherein the 2nd Respondent/Commissioner of Commercial Taxes in his reply dated 27.09.1999 in response to a letter dated 17.09.2009 from the 1st Respondent stated as under:

Therefore, it is practically not possible to identify and distinguish between 'substantive vacancies' belonging to the cadres and those occupy Ex-cadre posts.

90.The Learned Counsel for the Petitioners contends that the premise is that the 'List of approved candidates' includes "appointees to temporary posts" and the other premise is that 'Seniority' of an appointee shall be determined by the rank obtained by him in the list of approved candidates and in fact, Rule 35(a) of Tamil Nadu State and Subordinate Service Rules speaks of 'Seniority' and the impugned seniority lists fixes inter-se seniority between direct recruits and transferees and in this regard, there is failure to follow Rule 35(aa) of the Tamil Nadu State and Subordinate Service Rules.

91.The Learned Counsel for the Petitioners submits that the impugned CTO lists violates Articles 14 and 19 of the Constitution of India and in this regard, relies on the decision of the Hon'ble Supreme Court in O.P.Singla and another V. Union of India and others , (1984) 4 Supreme Court Cases 450 which runs as follows:

Further, in the aforesaid Judgment, it is also stated as under:

92.That apart, the Learned Counsel for the Petitioners has placed reliance on the decision of the Hon'ble Supreme Court in Baleshwar Dass V. State of U.P. (1980) SCC (4) 226, wherein it is observed as follows:

93.Moreover, the Learned Counsel for the Petitioners places reliance on the decision of the Hon'ble Supreme Court in S.B.Patwardhan V. State of Maharastra, AIR 1977 SC 2051 wherein it is held as follows:

94.Apart from the above, the Learned Counsel for the Petitioners also seeks in aid of the following decisions of the Hon'ble Supreme Court:

95. The Learned Counsel for the Petitioners refers to the observations of the Hon'ble Supreme Court in the case of Oriental Insurance Co.Ltd V. Smt.Raj Kumari and Others (dated 14.11.2007) (Indian Kanoon  http://indiankanoon.org/doc/450457/) and submits that 'Reliance on the decision without looking into the factual background of the case before it is clearly impermissible. A decision is a precedent on its own facts. Each case presents its own features. It is not everything said by a Judge while giving a judgment that constitutes a precedent. The only thing in a Judge's decision binding a arty is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basic postulates_

(i)findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts;

(ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and

(iii)judgment based on the combined effect of the above.

A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment. The enunciation of the reason or principle on which a question before a Court has been decided is alone binding as a precedent. (vide State of Orissa V.Sudhansu Sekhar Misra and Ors. (AIR 1968 SC 647) and Union of India and Ors. V. Dhanwanti Devi and Ors. (1996 (6) SCC 44).

96. Further, he refers to the decision of ' Quinn V. Leathem (1901) AC 495 (H.L.), Earl of Halsbury LC, wherein it is observed that ' every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which are found there are not intended to be exposition of the whole law but governed and qualified by the particular facts of the case in which such expressions are found and a case is only an authority for what it actually decides.'

97. Also, he invites the attention of this Court to the famous words of Lord Denning in the matter of applying precedents which run as under;

' Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect'.

98.The Learned Counsel for the Petitioners submits that the decision of this Court in Sundarajan 's case was concerned with temporary appointments alone and the said Judgment had not discussed about the temporary posts. Also that, it is the stand of the Petitioners that the final order of the Hon'ble Supreme Court dated 04.03.2009 has not given any seal or approval to the provisional inter-se seniority lists produced before it.

99.The Learned Counsel for the Petitioners brings it to the notice of this Court that all the 19 Petitioners are from 'B' list mentioned in the impugned order dated 18.08.2011 of the 2nd Respondent and when the Writ Petitioners are members of service they cannot be denied the benefit of Rule 35(aa) of the Tamil Nadu State and Subordinate Service Rules. Further, the Petitioners are regular appointees [not temporary appointees in terms of Rule 10(a)(i)(1) of the Tamil Nadu State and Subordinate Service Rules] and therefore, they cannot be treated as second class citizens.

The Submissions of the Respondents 1 and 2:

100.The Learned Additional Advocate General appearing for the Respondents 1 and 2 contends that in pursuance of the Hon'ble Supreme Court order in S.L.P.No.9189/87, 9114/1987 and 12013/ 1987 (CA.No.1454/1987) dated 10.02.1999 and in consonance with the provisions of the General Rule for Tamil Nadu State and Subordinate Service and the Special Rules for Tamil Nadu Commercial Taxes Subordinate Service, the inter-se seniority was drawn for the cadre of ACTO from the year 1968 to 2006 as per proceedings dated 04.05.2009, which was challenged before this Court in W.P.No.11618/ 2009 etc. batch and the same was dismissed by this Court on 06.04.2011 and also while upholding the revision, has issued directions to follow the aforesaid principles laid down by the Hon'ble Supreme Court in future cases also. Thereupon, the further cadre from DCTO to JC were also taken up for revision and orders were issued by the competent authority and in fact, following the 4 principles evolved by the Hon'ble High Court as well as the Hon'ble Supreme Court, permanent lists were drawn for each year against 'substantive vacancies' in the permanent cadre strength and further that, those persons who do not form part of the permanent cadre strength were included in the temporary lists against temporary vacancies.

101.Added further, the direct recruits (holders of substantive posts) were appointed through Public Service Commission and they were included in the permanent lists against their quota. By following the above methodology, the inter-se dispute was finally settled and the department is able to publish permanent lists, each year, for cadres from DCTO onwards. Only in order to distinguish those promoted against temporary vacancies, a temporary list is also being drawn for each vacancies.

102.The State Government issued the G.O.Ms.No.176, P & AR (Per. S) Department, dated 05.07.1994 to fall in line with the taking by the Government of India in Central Government Departments and the said G.O. related to the year 1994 although the Supreme Court Judgment was delivered on 10.02.1999. As such, it could not be said that the 2nd Respondent violated the orders of G.O.Ms.No.176, P & AR (Per.S) Department dated 05.07.1994, while implementing the principles followed by the Hon'ble Supreme Court.

103.Continuing further, the Learned Additional Advocate General for the Respondents 1 and 2 contends that the delinking of confirmation would not entitle the temporary vacancy holders to claim seniority over and above the permanent vacancy holders, for the reason that confirmation was not considered as criteria for fixing the seniority by the Hon'ble Supreme Court. Per contra, it is only the availability of permanent vacancy within the quota alone is to be considered for determining seniority. Also that, the Special Rules for Commercial Taxes Department does not speak of 'Theory of Confirmation' or about the application of principles of General Rule 4 of Tamil Nadu State and Subordinate Service Rules. In reality, the Special Rules would always prevail over General Rule.

104.The Learned Additional Advocate General for the Respondents 1 and 2 goes on to add in his submission that pursuant to the G.O.Ms.No.176, P & AR (Per. S) Department, dated 05.07.1994, the Government amended General Rule 31 of the Tamil Nadu State and Subordinate Service Rules regarding the delinking of confirmation through G.O.Ms.No.125, P & AR (Per.S) Department, dated 10.07.2000 and issued orders to this effect from 10.07.2000.

105.In short, the forceful plea of the Learned Additional Advocate General is that the 4 principles followed by the Hon'ble Supreme Court in its Judgment in C.A.No.1454/1987 dated 10.02.1999 would always override any order issued before the date of Judgment.

Reply submissions on the side of the Petitioners (in W.P.Nos.18209/2012, 19088/2012, 11129/2013, 11324/2013 and 20336/2013):

106.The Learned Senior Counsel for the Petitioners submits that the power to relax qualification is selectively used by the 1st Respondent to give impetus to the service candidates and with a view to get over the orders of the Division Bench of this Court passed in W.P.No.12786/ 1985 as well as the Judgment of the Hon'ble Supreme Court dated 10.02.1999 in C.A.No.1454 of 1987 and the Respondents undermined the aforesaid judicial orders. Further, it is represented on behalf of the Petitioners that 'practicality' is never the concern of Court and per contra, the 'practicality' is the concern of the Executive. Furthermore, there is nothing on record to show that the Writ Petitioners have malfunctioned and in fact, no body can violate the Court orders and the Petitioners are aggrieved because of the discriminatory treatment shown by the Respondents 1 and 2.

107.Also that, it is the stand of the Petitioners that they have not been treated even-handedly by the 1st Respondent/State and indeed, the 'power to relax' the qualification is arbitrarily exercised by the 1st Respondent.

108.That apart, it is the contention of the Learned Senior Counsel for the Petitioners that Rule 39(a)(1) of the Tamil Nadu State and Subordinate Service Rules dealing with 'temporary promotion' has to be read subject to the ingredients of Rule 36(a) which refers to 'promotion' and in fact, Rule 38 of the Tamil Nadu State and Subordinate Service Rules speaks of 'annulment, modification or reversion of the list of approved candidates for appointment or promotion by Government'. Furthermore, it is pleaded on behalf of the Petitioners that none of the promotees have commenced their probation in that cadre and therefore, they cannot be promoted under Rule 39(a) without being eligible under Rule 36(a) of the Tamil Nadu State and Subordinate Service Rules. Moreover, none of the promotees has any lien to the post and in fact, Rule 8 of the Special Rules says when probation would be completed and Rule 11 of Special Rules read with Rules 8 and 36(a) of the Tamil Nadu State and Subordinate Service Rules disables the Government from resorting to Ad hoc promotion from Annexure 'B' list. Further, the 1st Respondent/State has to answer why the Petitioners are not having 2 years of experience in the assessment work and the Ad hoc promotees have not stepped down when regular appointments were made and in fact, the 1st Respondent/State is overreaching the law.

109.Added further, it is the submission of the Learned Senior Counsel for the Petitioners that the promotees do not have a lien at the entry level in the Subordinate Service of the Commercial Tax and Assistant Commissioner is the State level entry posts.

Reply of Respondents 1 and 2:

110.Countering the submission of the Learned Senior Counsel for the Petitioners, the Learned Additional Advocate General submits that Annexure 'B' list of the impugned order dated 18.08.2011 do possess all the requisite qualification for the post and as and when they acquired seniority, they would come to 'A' list and as per interim order dated 19.07.2012 in M.P.Nos.1 and 2 of 2012 in W.P.No.18209 of 2012, the Petitioners were given the benefit of relaxation of 2 years assessment experience required for promotion.

111.It is not in dispute that the recruitment for Assistant Commercial Tax Officer is by means of direct recruitment and by means of transfer. As per Rule 2(b) of the Special Rules for the Tamil Nadu Commercial Taxes Subordinate Services in the ratio 33 1/3% and 66 2/3%, the probation between direct recruitment and recruitment by transfer is provided. In fact, the Assistant Commercial Tax Officer is the feeder category to the Deputy Commercial Tax Officer and then to Commercial Tax officer now redesignated as Assistant Commissioner. Significantly, now a person appointed in the category of Assistant Commissioner under the Tamil Nadu General Service is by means of direct recruitment and recruitment by transfer in the probation of 1: 2 in terms of Rule 2(c) of the Special Rules for Tamil Nadu Commercial Taxes Services.

112.The stand of the Official Respondents is that till the year 1981, ACTO lists were drawn separately for each divisions. However, a single unit system was adopted from the year 1982, pursuant to the Government orders and lists were drawn for the State as a whole. Till the year 1981, a consolidated ACTO seniority list for promotion to DCTO post was drawn up but the same was challenged by the direct recruit ACTOs [by one S.Sundarajan and others who filed W.P.No. 12786/1985] on the basis that the vacancies estimated and reserved for them for each year were filled up by promotees and that these promotions were temporary inasmuch as no service confirmation or declaration of probation was made in these cases and this Court prescribed three guidelines in the orders passed in W.P.No.12786 of 1985 and also the Hon'ble Supreme Court adopted the 4th principle in C.A.No.1454/1987 dated 10.02.1999, till the year 1981 and resultant lists pertaining to the higher cadres were litigated before the Court, it is the plea of the Official Respondents that all promotions and appointments from the post of ACTO and above were made [by following the prescribed Rules for preparation of regular panels] without preparation of regular panels in each category.

113.Due to the litigation relating to inter-se seniority among the Assistants of different divisions pursuant to the bifurcation of some divisions in the year 1981 and subsequent years, the recruitment to the post of ACTO by transfer of service from among Assistants has been made by following the Rules. It appears that no regular panels were drawn. Therefore, promotions to DCTO and higher cadres were also made with temporary lists. At this stage, this Court pertinently points out that in Contempt Petition No.263 of 2007 in C.A.No.1454 of 1987 the Hon'ble Supreme Court passed an interim order on 20.10.2008 by directing the Department to publish a fresh list and a fresh inter-se seniority list was drawn as per proceedings dated 01.12.2008 and objections were invited. On 04.03.2009 in Contempt Case, the Hon'ble Supreme Court issued directions to consider and pass orders on the objections filed with reference to the provisional list dated 01.12.2008 within a period of eight weeks from the date of receipt and also to give consequential promotional benefits to the Petitioners within a period of four months.

114.When the provisional inter-se seniority was drawn and communicated in the proceedings dated 01.12.2008 (confirmed for the years from 1968 to 2006 through proceedings dated 04.05.2009 with certain modifications), the transferees were perforced to file W.P.No.11618 of 2009 etc. batch before this Court and this Court confirmed the seniority list drawn in respect of the period beginning from 1968-2006.

115.Indeed, in the common order dated 06.04.2011 in W.P.No.11618 of 2009 etc. batch, this Court in paragraph No.86, has, inter alia, observed as under:

116.In effect, this Court, through its order dated 06.04.2011, confirmed the seniority list drawn for the period from 1968-2006. It appears that as against the common order dated 06.04.2011 in W.P.No.11618 of 2009 etc. batch, Writ Appeal No.2280 of 2011 is pending before this Court.

117.Further, this Court relevantly points out that the common order dated 06.04.2011 in W.P.No.11618 of 2009 in paragraph 72, it is observed as follows:

118.At this stage, it is not out of place for this Court to make a relevant mention that the Government by adopting the Rule of Reservation issued G.O.(Ms).No.30, Commercial Taxes and Registration Department, dated 09.03.2012, for drawal of regular panel/seniority list for the post of Commercial Tax Officer/Assistant Commissioners for the period from 1984 to 2010 and after receipt of objections and examining the same, the panel/seniority list was confirmed in G.O.(Ms).No.69, Commercial Taxes and Registration Department, dated 04.06.2012. The Government, based on the confirmation of regular panel/seniority list, fixed the inter-se seniority between the direct recruits and recruitment by transfer in the regular list of Commercial Tax Officer/Assistant Commissioner in respect of period from 1984 to 2010 in G.O.(Ms).No.116, Commercial Taxes and Registration Department dated 24.08.2012. Also, in respect of the period from 1987 to 2011 a resultant revision in the cadre of Deputy Commissioners (CT) was drawn in G.O.(Ms).No.139, Commercial Taxes & Registration Department, dated 02.11.2012, in the cadre of Joint Commissioners (Commercial Taxes) for the year 1988 to 2013 was drawn in G.O.(Ms).No.16, CT & R Department dated 27.02.2013 and in the cadre of Additional Commissioners (Commercial Taxes) for the year 1989 to 2013 was drawn in G.O.(Ms.)No.70, CT & R Department, dated 19.06.2013.

119.The Department has resorted to the drawal of temporary panels in the cadre of DCTOs/CTO/AC/DC etc. for filling up the large number of vacancies and notwithstanding the fact that the panels drawn were temporary, the procedures and guidelines initiated by the Government were followed and in this fashion, the temporary panels of DCTOs, CTOs were drawn for the years 2009 to 2012. Based on the revised seniority list of CTOs proposals for the drawal of temporary panel of ACs for the year 2013 were sent to the Government.

120.In regard to the plea taken on behalf of the Petitioners that internal/departmental candidates are accommodated yearly from Annexure 'B' list to 'A' list against the 66 2/3% in the internal recruitment quota in the cadre of DCTO (formerly ACTO) which is entry level post of the Subordinate Service, it is to be pointed out that the Official Respondents have taken a specific stand that transferees belonging to 66 2/3% quota have not encroached on the quota meant for direct recruits and also that the Hon'ble Supreme Court in the Judgment dated 10.02.1999 in C.A.No.1454/1987 between State of Tamil Nadu V. S.Sundaraj and others , has not prohibited anywhere in the Judgment in regard to the operation of temporary lists for filling up of temporary vacancies. In reality, the Hon'ble Supreme Court has only directed to fill up the substantive vacancies through those individuals who have held the post substantively within the permanent cadre strength allotted to the particular category and enunciated few principles in arriving at the inter-se seniority. Under such circumstances, the plea of the Petitioners that Annexure 'B' list candidates is an illegal one is not accepted by this Court. That apart, the Petitioners were given the due seniority in the permanent lists for the purpose for each year and they have no objections to the seniority, but their contention is against persons like Respondents 3 to 6 who are appointed against the temporary vacancies which were not prohibited by the Hon'ble Supreme in its order dated 10.02.1999 in C.A.No.1454 of 1987 and also by the orders issued on 04.03.2009. Even otherwise, the Respondents 3 to 6 were included only in the temporary lists drawn for filling up the temporary vacancies and since their appointment is in temporary list, the same would not affect the Petitioners in any manner whatsoever, as opined by this Court. Added further, the Petitioners/Direct Recruits were given their due seniority by following the Hon'ble Supreme Court Judgment dated 10.02.1999.

121.Coming to the stand taken on behalf of the Petitioners that the inclusion in the impugned seniority list dated 18.08.2011 by means of Annexure 'B' indicates who are appointed under 10(a)(i) of the General Rules by way of transfer and holding Ad hoc appointments and that they have not entered into the service of the Tamil Nadu Commercial Taxes Subordinate Services and they cannot be included in the seniority list of the Annexure 'B', it is to be pointed out that the Respondents 8 to 18 in W.P.No.11324 of 2013 (RR. 16 to 26 in W.P.No.11129/2013) were all appointed as Junior Assistants in the year 1989 and their services were confirmed in that post and also they got further promotion.

122.At this juncture, this Court appropriately points out that by means of proceedings dated 10.04.1989 of the Assistant Commissioner (CT) Zone VI, Serial No.3 S.Kathiravan, Junior Assistant [as an illustrative case] was regularised with effect from 0.07.1987 forenoon. Also, in the said proceedings, it was mentioned that the said Junior Assistant would be on probation for a period of 2 years from the date of regularisation within a continuous period of 3 years. Furthermore, as per proceedings of the Assistant Commissioner (CT), Zone VI dated 26.08.1999, the said aforesaid Kathiravan [Junior Assistant in the office of Commercial Tax Officer, Luz] was declared to have completed the period of probation satisfactorily in the cadre of Assistant on the afternoon of 30.06.1989 etc. Therefore, when the said Kathiravan's service was confirmed at the entry level posts for similarly situated persons/candidates also the Department has done the same. Therefore, when the temporary vacancies, which are large in number required to be filled up through temporary promotion alone by adhering to the guidelines fixed by the Government and by taking into consideration merit as well as ability, these vacancies are filled up by drawing temporary panel and all persons included in the temporary lists have duly completed their probation in the initial stage itself and especially when Rule 31 of the Tamil Nadu State and Subordinate Service Rules speaks of an approved probationer shall be considered for confirmation of service immediately after declaration of probation and such confirmation of service shall be made in the entry level posting to which he was appointed, it is not necessary to confirm or declare probation at every stage and as such, the contra plea taken on behalf of the Petitioners to the effect that 'Annexure 'B' candidates have not even commenced service in the Tamil Nadu Commercial Taxes Subordinate Service, in that they have not even commenced probation at the entry level post etc. is not acceded to by this Court.

123.In this connection, it is not out of place for this Court to make a pertinent mention that the Respondents 8 to 18 (in W.P.No.11324 of 2013) were appointed in the year 1987 as Junior Assistants recruited through Tamil Nadu Public Service Commission and confirmed in the year 1989, are to be confirmed in each post. To Put it differently, the confirmation should be made only once and the confirmation need not be done at every stage.

124.One cannot ignore a very vital fact that the Petitioners are now raising their objections only to the revision carried out for temporary vacancies (Annexure 'B') which admittedly has no bearing on the seniority and according to the Official Respondents, they are seniors to the temporary vacancy candidates. Also that, when the revision was made by adhering to the quota principles prescribed in the Special Rules for the Tamil Nadu Commercial Taxes Subordinate Service, there cannot be a case of access being made either for permanent or temporary vacancies as the case may be. Obviously, the Petitioners are making an endeavour to upset the Apple-Cart viz., to unsettle the settled issue. In any event, there can be no hardship or inconvenience caused to the Petitioners in regard to the preparation of temporary panel of Assistant Commissioner (CT) for the year 2013, since the 1st Respondent/State is only filling up the huge number of vacancies to augment the revenue collection and mobilise resources to its coffers.

125.Dealing with the plea of the Petitioners is that there is a small shortfall in qualification (viz., the Petitioners being short of 2 years experience for few months) as envisaged under 4(1)(A)(iii) of the Tamil Nadu Commercial Taxes Service Rules in regard to the regular appointment to the post of Assistant Commissioner (formerly CTO  who hold in substantive capacity the post of CTO (formerly DCTO) have satisfactorily completed their probation in the post of DCTO), it is to be pointed out that the Petitioners as on 01.01.2013 are not possessing the requisite not less than 2 years of service in all as Commercial Tax Officer engaged in assessment work.

126.It comes to be known that the relaxation in respect of 2 years assessment service was done only in respect of persons who completed their minimum 2 years of service in the cadre of Commercial Tax Officer who were promoted as Assistant Commissioner (CT) and for no one the minimum specified 2 years of service norms has been either waived or relaxed. When the fact situation is to the effect that the Petitioners have less than one year of service as on 01.01.2013, which is the crucial date for drawal of panel of Assistant Commissioner (CT) for the year 2013, it is quite clear that the Petitioners are not fulfilling the eligibility requirement of Rule 4(1)(A)(iii) of the Tamil Nadu Commercial Taxes Service Rules.

127.It is for the 1st Respondent/Government to relax the qualification of experience of the Petitioners who lack the same (in regard to the prescribed experience) and in this regard, the Court of Law cannot issue any directions to the 1st Respondent because of the simple fact the efficiency, relaxation though may be made while making initial appointment but such relaxation cannot be applied in case of promotion. That apart, the 1st Respondent/Government is within its competence to decide as a matter of policy, the sources from which the personal requirement for meaning the service are to be drawn. Moreover, a recruitment of any service can be made from different sources i.e. Direct Recruitment, by Promotion, or by Absorption/Transfer. To put it succinctly, sources of recruitment can either be internal or external. Furthermore, for determination of inter-se seniority of such recruits one has to see the cadre to which concerned persons are recruited.

128.In this connection, this Court aptly points out that the characteristics of 'Ad hoc promotions' are substantially the same as 'Officiating Promotions'. Ordinarily, promotions are given on Ad hoc basis either when Direct Recruitment is held up or a stop gap arrangement is necessary, due to administrative exigency or to made unusual situations or emergent needs. But, if such Ad hoc or stop gap arrangements are made de hors rules, then, unless subsequently regularised such promotees do not have any substantive right as promotees and their entire length of service as Ad hoc promotees cannot be counted for seniority as per the decision Keshar Chandra Joshi V. Union of India , AIR 1991 Supreme Court 248.

129.It is to be remembered that 'Ad hoc Promotions' against such short term vacancies are given primarily as a matter of Administrative Exigency and in such cases, the Government cannot be faulted, if it does not follow the All India Seniority as per the decision of the Hon'ble Supreme Court in Union of India V. R.Swaminathan , AIR 1997 SC 354.

130.In this connection, this Court worth recalls and recollects the decision of the Hon'ble Supreme Court in Rishal Singh V. State of Haryana and others , JT 1994 (2) Supreme Court 157, wherein it is held that 'Ad hoc or temporary promotion is permissible but it must be traceable to statutory force of power or instructions having the force of law'.

131.This Court aptly points out that a promotion on an officiating basis will not normally confer upon the promoted a right to hold the post unless duly regularised, the employee is liable to be reverted to the substantive post from which he was given officiating promotion at the end of such officiation. Further, once regularised or confirmed, the service rendered during the officiating period would be reckoned for determination of seniority in the promoted post subject to the qualification that the initial officiating promotion was against the sanctioned post or a cadre post.

132.It is to be pointed out a confirmation can only be given if the initial entry or appointment is valid. However, the question would not arise where the initial entry was not against any sanctioned vacancy as per the decision of the Hon'ble Supreme Court in Ashwani Kumar and others V. State of Bihar and others , AIR 1997 Supreme Court 1628. Also that, in considering the question of confirmation, the authorities cannot act on irrelevant grounds e.g. That there were no recruitment rules in existence for the post which the probationer was holding as per decision in Bhaskar Gajanan Kajrekar V. Administrator, Dadra and Nagar Haveli and others , (1993) 3 SCC page 237.

133.Indeed, the real test is to ascertain whether a person has right to the post for which he is reverted as per decision of the Hon'ble Supreme Court in State of Uttar Pradesh V. Sughar Singh , AIR 1974 Supreme Court 423. Furthermore, where appointment is temporary or irregular in any manner, reversion should be carried out within a reasonable period. If the reversion is after 11 years, then, the order of reversion is liable to be set aside as per decision M.A.Hameed V. State of Andra Pradesh and another, (2001) 9 Supreme Court Cases 261.

134.More importantly, it is to be pointed out that in the decision of the Hon'ble Supreme Court in G.S.Lamba and others V. Union of India and others , AIR 1985 Supreme Court 1019, it is observed that 'there may be cases where Ad hoc Promotions were made in substantive vacancies and the promotions are likely to continue independently and held that the rule of continuous officiation would determine their inter-se seniority in the cadre'.

135.In the decision of the Hon'ble Supreme Court in Narender Chadha and others v. Union of India and others , AIR 1986 Supreme Court 638, it is observed as follows:

136.In the decision of the Hon'ble Supreme Court in Indian Airlines Corporation V. Capt . K.C.Shukla and others, (1993) 1 Supreme Court Cases 17, at special page 19, it is held as follows:

137.In the decision of the Hon'ble Supreme Court in M.S.Usmani and others V. Union of India and others , (1995) 2 Supreme Court Cases 377, at special page 378 & 379, it is observed as follows:

138.In regard to the plea taken on behalf of the Official Respondents that the Direct Recruits/Writ Petitioners cannot seek the relief of Mandamus on the ground that they do not fulfill the requirement of Rule 4(1)(A) of the Tamil Nadu Commercial Tax Service Rules. It is to be pointed out that in the absence of an enforceable legal right, no mandamus can be asked for. Further, the existence of a legal right and obligation of a public authority to fulfill the same on the date of Writ Petition are conditions precedent for maintaining the Writ of Mandamus, as opined by this Court.

139.Also that, where the application is premature for instance, where inaction contrary to law has yet to be done or proposed, then, Writ of Mandamus may be refused as per the decision in Chandrasekar V. State of Orissa, 1971 (2) SCD 1171 (1175).

140.To put it differently, the Petitioners must show that they have legal right of performance of a legal duty as distinguished from a discretion, as opined by this Court.

141.In fixing the ratio of recruitment from different sources, the Government can make out preferential treatment to one source in relation to another so long as such treatment is based on differences between the two sources and the differences have a reasonable relation to the nature of office or officers to which the recruitment is made as per decision of the Hon'ble Supreme Court in Govind Dattatray Kelkar and others V. Chief Controller of Imports and Exports and others , AIR 1967 Supreme Court 839 at page 842.

142.It is to be noted that 'Malice' means a wrongful act intentionally performed but without cause. The term 'Mala fide' includes 'Malice' and yet an ulterior motive to cause injury to some one, in the considered opinion of this Court. Like, 'Malice' 'Mala fide' being a subjective one, it is to be proved by a circumstantial/indirect proof. However, if once the fairness State action is either presume or noticed, then, the action of the Executive will be ordinarily upheld. As far as the present case is concerned, there is no material to show that for the post of Assistant Commissioner, the official Respondents 1 and 2 have relaxed the two years assessment experience and therefore, it cannot be said that the Petitioners have been discriminated or the Respondents 1 and 2 have practiced 'Malice in Law'. In fact, for writing an assessment order the requirement of 4(1)(A)(iii) of the Tamil Nadu Commercial Tax Service Rules viz., as Commercial Tax Officers engaged in assessment work is an essential requirement and this requirement, by no stretch of imagination, can be construed either as a capricious or mala fide or in any event, an arbitrary one, in the considered opinion of this Court.

143.Further, due to administrative exigencies the orders are issued as temporary. As long as the quota rule is not violated, the Writ Petitioners cannot stifle the service benefits like promotion being given to the promotees. In short, drawal of temporary panels for vacancies have arising in temporary posts is not prohibited by this Court or by the Hon'ble Supreme Court of India. Only when substantive vacancies are filled, the claim for regular promotion arises. Indeed, the Petitioners cannot coerce or compel the Department to give them promotion ahead of the persons in the 2/3rd quota, more so, when they are not in the zone of consideration/eligibility to be considered during the year 2013. The two Annexures viz., 'A' and 'B' in the impugned proceedings dated 18.08.2011 of the 2nd Respondent cannot be said to be an invalid one because of the simple reason the inter-se seniority between the direct recruits and promotees would be fixed only after finalising the quota meant for recruits by transfer. Also that, there are many temporary vacancies in the post of Assistant Commissioner and by virtue of Rule 4(1)(A)(iii) of the Tamil Nadu Commercial Taxes Service Rules, the Petitioners are ineligible. That apart, the promotees were promoted prior to the direct recruits within their quota and therefore, the direct recruits/Writ Petitioners cannot have any grievance in regard to the promoted appointments/promotions which is permissible under the Rules. In fact, the qualification of possessing 2 years assessment experience as per Section 4(1)(A)(iii), in the considered opinion of this Court, has a reasonable nexus with the duties to be performed by the Writ Petitioners/Direct Recruits.

144.In the substantive vacancies to the post of DCTOs viz., 271 out of which only 1/3rd is meant for direct recruits which comes to 90 posts. The promotees/quota officers were in fact promoted prior to the entry of the Writ Petitioners into service and that too on temporary basis. Therefore, when the temporary promotions are effected based administrative on administrative exigencies and as long as the rules are not violated and further, the quota is fixed, the Writ Petitioners/ Direct recruits cannot curtail the benefit of promotion being given to the promotees. Also that, when there are temporary vacancies, the Respondents 1 and 2 are entitled to accord temporary promotions to the qualified persons and it does not affect either the seniority or regular promotional avenues. As such, the contra claim of the Writ Petitioners is per se not legal, in the eye of law.

Bird's Eye view of Decisions:

145.In this connection, this Court more aptly points out that in the decision C.P.Kalra V. Air India , 1995 1 LLJ 164 (SC), the Hon'ble Supreme Court has held as follows:

146.In the decision of the Hon'ble Supreme Court State of Mysore V. C.R.Seshadri and others , AIR 1974 SC 460, it is held that 'In our Constitutional scheme a broad three fold division exists. The power to promote an officer belongs to the Executive and the Judicial Power may control or review Government action but cannot extend to acting as if it were the Executive. The Court may issue directions but leave it to the Executive to carry it out. The Judiciary cannot promote or demote officials but may demolish a bad order of Government or order reconsideration on correct principles'.

147.In the decision of the Hon'ble Supreme Court in K.Jagadeesan V. Union of India and others , AIR 1990 Supreme Court 1072 at page 1073, it is held as follows:

148.In the decision of the Hon'ble Supreme Court in Roop Chand Adlakha and others V. Delhi Development Authority and others , AIR 1989 Supreme Court 307, it is held as follows:

149. (a) In the decision of the Hon'ble Supreme Court in Subash Chand Jain V. Delhi Electric Supply Undertaking and others , AIR 1981 Supreme Court 75, it is observed that 'The prescription of stenographic ability of 100 words per minute has been held to be a relevant qualification for promotion from Junior Typist to Junior Stenographer'.

(b) In the decision of Hon'ble Supreme Court in Mangej Singh and Others V. Union of India and Others , JUDGEMENTS TODAY 1998 (8) SC 176, it is held as follows:-

150.In the decision of the Hon'ble Supreme Court in K.Ramesh Babu V. State Bank of India , 1992 (3) SLR 561 (AP), it is held that 'The power to relax qualification or an eligible criterion, if granted by rules cannot be exercised arbitrarily'.

151.It is to be pointed out that the guarantee of an equality before law is a positive concept. It cannot be enforced in a negative manner. An illegality or irregularity committed in favour of one cannot be a ground in favour of another person to invoke jurisdiction of the Court to grant that sort of illegal or irregular benefit as per decision of the Hon'ble Supreme Court in Gursharan Singh and others V. New Delhi Municipal Committee and others [(1996) 2 Supreme Court Cases 459]. It is to be noted that there is a clear distinction between eligibility for promotion and criteria for determining seniority.

152.Also that, Article 14 of the Constitution is a genus in the sense that the clauses on lawful or protective discrimination and public employment as laid down in Articles 15 and 16 respectively provided for exceptions to that equity clause of Article 14. Hence, in appropriate cases, all the three Articles are to be read together as per the decision of the Hon'ble Supreme Court in Saurabh Chaudri and others V. Union of India and others [(2003) 11 Supreme Court Cases 146].

153.Ordinarily, similarly situated Employees in an Establishment /Organisation/Institution, while discharging the same duties and responsibilities like that of others, are not to be discriminated, in the eye of law. Per contra, they are to be treated in an equal fashion. If certain persons are alone showered with the benefit of relaxation either in regard to the qualification aspect or otherwise, then, it will kindle a reasonable and prudent person's mind to recall and recollect the illuminating words of George Orwellian, who pertinently said, 'All are equal but some are more equal than others'.

154.Further, in the decision of the Hon'ble Supreme Court in Chandigarh Administration and another V. Jagjit Singh and another , [(1995) 1 Supreme Court Cases 745], it is held that 'The Petitioner has to establish his right or entitlement to a particular benefit. Where he fails to do that and only relies on the fact that a similarly situated person has been illegally granted that benefit, he cannot make it a ground for also granting such benefit'.

155.Apart from the above, in the decision of the Hon'ble Supreme Court in Bihar Public Service Commission and others V. Kamini and others , [(2007) 5 Supreme Court Cases 519], it is, inter alia, held that 'Even if some ineligible candidates were wrongly treated as eligible, it could not give rise to doctrine of equality'.

156.Suffice it for this Court to point out that the Petitioners have not made out a case before this Court that the Respondents 1 and 2 have acted contrary to law and further that when there is no corresponding duty or right on the Petitioners to seek the relief of Writ of Mandamus in W.P.Nos.18209/2012, 19088/2012, 4879/2013, 11129/2013, 11324/2013 and 20336/2013 especially when they are not qualified in terms of Rule 4(1)(A) of the Tamil Nadu Commercial Taxes Service Rules, then, the Writ of Mandamus which is a discretionary remedy would not lie. Further, in the absence of a judicial enforceable legal right on the part of the Petitioners, they cannot ask for the relief of Mandamus in the concerned Writ Petitions. Viewed in that perspective, W.P.Nos.18209 of 2012, 19088 of 2012, 11129 of 2013, 11324 of 2013 and W.P.No.20336 of 2013 filed by the Writ Petitioners are not maintainable in the eye of law.

Discussions in W.P.No.4879 of 2013:

157.In W.P.No.4879 of 2013, the Petitioners are challenging the orders of the 1st Respondent in G.O.Ms.No.176, P & AR (Per. S) Department, dated 05.07.1994 coupled with the General Rule 4, 31, 35(aa) of the Tamil Nadu State and Subordinate Service Rules.

158.It is to be pointed out that the Petitioners place reliance on G.O.(Ms).No.176, P & AR (Per.S) Department, dated 05.07.1994 pertaining to confirmation of vacancies in permanent cadre which was earlier followed by the Respondents 1 and 2 and later delinked by the said tenor and spirit of G.O. The 1st Respondent/Government, while passing such orders, observed that confirmation may be made at the entry stage and seniority shall continue to be determined on the basis of confirmation in that grade. The simplification of confirmation procedure was brought about in respect of Central Government Employees by the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, in O.M.No.18011/1/ 86-Estt. (D) dated 28.03.1988. The 1st Respondent/Government of India followed the aforesaid letter dated 28.03.1988 and in fact, the Hon'ble Supreme Court passed the judgment in C.A.No.1454 of 1987 dated 10.02.1999 and also that the delinking of confirmation would not confer any right on the temporary vacancy holders to claim seniority over and above the permanent vacancy holders because of the reason that confirmation was not considered as criteria for fixing seniority by the Hon'ble Supreme Court. Per contra, it is the availability of permanent vacancy alone within the quota is necessarily to be considered for determining seniority as expressly stated by the Hon'ble Supreme Court of India in its Judgment in C.A.No.1454/1987 dated 10.02.1999.

159.Further, Rule 4 of the Tamil Nadu State and Subordinate Service Rules speaks of preparation of list of approved candidates in respect of appointment by promotion and by recruitment by transfer to all categories of posts etc. But the Special Rules for Tamil Nadu Commercial Tax Service is silent on the aspect of confirmation or as to the applicability of principles of General Rule 4 of the Tamil Nadu State and Subordinate Service Rules in the Special Rules.

160.At this juncture, this Court relevantly points out that it is the well settled principles of Rule of construction that the Special Rules would override the General Rule and also that any amendment made in the General Rule also would not affect the applicability of the Special Rules for the Commercial Taxes Department, in the considered opinion of this Court. Although the delinking of confirmation was done as per G.O.(Ms).No.125, P & AR (Per. S) Department, dated 10.07.2000, the amendment to General Rule 31 through G.O.Ms.No.176, P & AR (Per. S) Department dated 05.07.1994 only if the said amendment has been correspondingly carried out in the Special Rules for Commercial Tax Services, the Special Rule will prevail over the General Rule as per well settled principle of interpretation, in the considered opinion of this Court.

161.At this juncture, this Court pertinently points out that based on the three principles/guidelines enunciated by this Court in W.P.No. 12786 of 1985 dated 19.06.1986 and also the fourth principal/ guideline issued by the Hon'ble Supreme Court as per Judgment dated 10.02.1999 in C.A.No.1454 of 1987, the Respondents 1 and 2 have prepared seniority list and the 2nd Respondent issued the proceedings dated 18.08.2011 showing the list Annexure 'A' and 'B' (pertaining to the permanent and temporary candidates). In fact, the tenor and spirit of the Judgment of the Hon'ble Supreme Court dated 10.02.1999 in C.A.No.1454 of 1987 would always prevail over any order issued prior to the date of said Judgment. Moreover, only those posts which are borne on the cadre are to be taken into account for the purpose of Seniority and 'Ex-cadre' posts cannot be counted for seniority. In fact, the Hon'ble Supreme Court in C.A.No.1454 of 1987 has not considered the temporary posts. In short, when the Respondents 1 and 2 have kept in mind the guidelines/principles in regard to the fixation of seniority in W.P.No.12786/1985 dated 19.06.1986 which was affirmed by the Hon'ble Supreme Court through its Judgment in C.A.No.1454 of 1987 dated 10.02.1999 and when it is followed by them and also when there is no bar, in law, for maintaining 'A' and 'B' lists as mentioned in the proceedings of the 2nd Respondent dated 18.08.2011, then, this Court is of the considered view that the Petitioners cannot insist upon the Respondents 1 and 2 to follow the General Rule 35(aa) of the Tamil Nadu State and Subordinate Service Rules.

162.Further, when the Petitioners herein/promotees have not challenged the three principles/ guidelines enunciated by this Court in W.P.No.12786 of 1985 dated 19.06.1986 (subsequently confirmed by the Hon'ble Supreme Court in C.A.No.1454 of 1987 dated 10.02.1999) and also the Hon'ble Supreme Court has added the fourth principle, they are not entitled to seek the relief in regard to the quashing of the orders in Proceedings No.P/1/15245/2011-1 dated 13.09.2012 etc. Even as per the order of the Hon'ble Supreme Court in C.A.No.1454 of 1987 dated 10.02.1999 and also by the order of this Court in W.P.No.12786 of 1985 dated 19.06.1986 it is clear that the individual appointed to the cadre would rank senior to a direct recruitment subject to the condition his appointment is to a cadre post. Also that the direct recruits were appointed against the substantive vacancies but the transferees were appointed beyond their quota by way of temporary appointment which was clarified by this Court in W.P.No.12786 of 1985 and subsequently, confirmed by the Hon'ble Supreme Court. Looking at from any point of view, the Writ Petitions filed by the Writ Petitioners/Promotees sans merits.

Disposition:

163.In the result, W.P.No.18209 of 2012, W.P.No.19088 of 2012, W.P.No.4879 of 2013, W.P.No.11129 of 2013, W.P.No.11324 of 2013 and W.P.No.20336 of 2013 are dismissed. Consequently, connected Miscellaneous Petitions are also dismissed. No costs. Before parting with the case, this Court aptly points out that the power of relaxation cannot be employed to give general exemption from compliance with regulations regardless of Justice and Equity, in the considered opinion of this Court. As a matter of fact, the power to relax a qualification or an eligibility criteria if granted by Rules cannot be exercised arbitrarily, as opined by this Court. However, the same should be exercised for the purpose of rectifying injustice done to an individual or setting right the grievance of group of individuals. Suffice it for this Court to point out that the power of relaxation either of qualification or eligibility basis cannot be exercised by the concerned authorities to shower benefits on few individuals in disregard to the principles and general rules of application contained in the regulations that are in force from time to time. In short, the power of relaxation is to be exercised in the interest of Justice, Equity and in Public Interest. Therefore, this Court opines that although the 1st Respondent is empowered, as per Rule 48 of the Tamil Nadu State and Subordinate Service Rules, to relax the applicability of any rule etc., the same may be resorted to by the authorities concerned with utmost care, caution and circumspection in future, leaving no room for any one to complain that there is a discrimination in regard to the relaxation of a particular Rule relating to one set/channel of Employees, thereby preventing litigations.

20.01.2014 Index :Yes Internet :Yes Sgl/Sms To

1.The Secretary, Government of Tamil nadu, Commercial Taxes Department, Fort St. George, Chennai  600 009.

2.The Commissioner, Commercial Taxes Department, Ezhilagal, Chepauk, Chennai  600 005.

M.VENUGOPAL,J.

Sgl/sms ORDERS IN W.P.No.18209 of 2012 W.P.No.19088 of 2012, W.P.No.4879 of 2013, W.P.No.11129 of 2013, W.P.No.11324 of 2013 and W.P.No.20336 of 2013 20.01.2014