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PETITIONER: K. DHEENADHAYALAN

       Vs.

RESPONDENT: STATE OF TAMIL NADU AND ANR.

DATE OF JUDGMENT22/04/1980

BENCH: PATHAK, R.S. BENCH: PATHAK, R.S. SARKARIA, RANJIT SINGH

CITATION:  1980 SCR  (3) 777

ACT:      Seniority List-Fresh  Inter-se seniority  List drawn as per the principles indicated by the High Court and according to  the  special  Rules  for  Tamil  Nadu  Commercial  Taxes Service-Petitioner not  a  party  before  the  High  Court’s proceedings-Whether directions would bind the petitioner-The power of  the High  Court to  fill up the lacuna in an order assailed.

HEADNOTE:      Under the  Special Rules  of the  Tamil Nadu Commercial Taxes Service,  recruitment to  the junior  most post, Joint Commercial Tax  Officer is  made by  direct recruitment  and recruitment by  transfer from Deputy Commercial Tax Officers in the  State Commercial  Taxes Subordinate  Services in the proportion 1:2.  The higher  posts are  filled by  promotion from officers  in the  category of  posts immediately below. Under Rule 2(b) all promotions are to be made on the grounds of merit and ability, seniority being considered where merit and ability  are equal. Rule 5(c) provides that every person appointed as  a Joint  Commercial Tax  Officer  must  be  on probation for  at least  two years  on duty;  in the case of direct recruitment  the probationary  period commences  from the date on which the officer completes his training and; in the case  of recruitment  by transfer  it commences from the date the  officer joins duty. Under rule 7(b), the period of training  of   a  direct  recruit  does  not  count  towards probation.      The petitioner  was recruited  to the  Cadre  of  Joint Commercial Tax  Officer as  a direct recruit in 1966 and was posted for  training which  he joined  on 6th  June 1966; he commenced his  period of  probation on  18th August 1967. On 16th August 1972, the petitioner was promoted to the post of Commercial Tax  Officer and  on 14th  January  1976  he  was promoted as  Assistant Commissioner.  The second  respondent joined the  post  of  Joint  Commercial  Tax  Officer  as  a promotee on  25th January  1967 and  commenced his probation from that date. He was promoted as Commercial Tax Officer on 17th December  1972 and  as Assistant  Commissioner on  26th August 1976.      In the  combined  inter-se  seniority  list  issued  in G.O.Ms. No.  4103 dated 9th July 1973, herein the petitioner and the  second respondent  were shown  in the  1966 list at

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serial numbers  43 and  52 respectively. The validity of the combined inter-se  seniority list was challenged in two writ petitions Nos.  2016 and 2017 of 1972 filed by certain other officers in respect of the ranking from serial numbers 51 to serial number 78. The petitioner was not a party to the writ petition. The  writ petition  was allowed by the Madras High Court. The  High Court  took note  of the fact that no rules had  been  framed  indicating  how  the  inter-se  seniority between the  direct recruits and the transferee recruits had to be  fixed and therefore directed a fresh determination of the inter-se seniority on the basis of three principles: (i) Each year  should be taken as a unit for fixing the inter-se seniority; (ii)  Persons not  actually appointed in the year 1966 should not be included in the 1966 year’s list 778 and their  seniority should  be determined with reference to the date  of their joining as Joint Commercial Tax Officers; and (iii)  The date  on which an officer commences probation is the proper criterion for fixing the inter-se seniority.      In  the   new  combined  inter-se  seniority  list,  so prepared and  issued by  the Government  in their  order No. G.O. Ms.  No. 2228 dated 27th December 1977, both the second respondent and the petitioner were shown at serial number 48 and serial  No.  49  respectively  in  the  1967  List.  The petitioner, apprehending  that the seniority assigned to him in the  second combined  inter-se seniority  list  of  Joint Commercial  Tax   Officers  would   prejudice  him   in  the promotions  to   be  made   to  the   category   of   Deputy Commissioners has  challenged the validity of that seniority list.      Dismissing the petition, the Court ^      HELD: 1.  Where the rules are specifically silent there is no doubt that the Government is entitled to make an order filling up  any lacuna  or uncovered gap in the rules. There is good  reason in  the principle followed in this case that seniority  should  be  based  on  the  length  of  effective service. The  date of  confirmation in a post then loses its relevance. [781 F-G]      2. The  principle that  officers whose  effective entry into the  service pertains  to a  particular year  should be regarded as  a unit  in themselves for fixing their inter-se seniority is valid. Correctly, therefore, the petitioner and the second  respondent have  been placed  in the  1967 List. Since the  Special Rules do not contemplate any credit being given for  the period  of training  undergone  by  a  direct recruit and  the probationary period commences only when the training ends,  the year of appointment is of little moment. [781 B-C, D-E]      3. The  principles propounded  by the  High  Court  are principles of  general application  and drawn from the rules governing the service and the concepts implied therein. They are not principles applicable peculiarly only to the parties to the  writ petitions.  They  are  principles  which  could legitimately form the basis of a combined inter se seniority list in respect of Joint Commercial Tax Officers. The places assigned to  the petitioner  and the  second respondent duly represent their  relative seniority.  The  second  seniority list was  prepared after issuing notice to all including the petitioner and prepared after considering objections raised. [782 A-C]

JUDGMENT:

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    ORIGINAL JURISDICTION: Writ Petition No. 461 of 1979.            (Under Article 32 of the Constitution)      Dr. Y. S. Chitale, R. Mohan, P. N. Ramalingam and A. T. M. Sampath for the Petitioner.      A. V. Rangam for the Respondent.      The Judgment of the Court was delivered by      PATHAK, J.-The  Tamil  Nadu  Commercial  Taxes  Service consists of  a hierarchy of posts. At the base lies the post of Joint  Commercial Tax  Officer, above  it is  the post of Commercial Tax  Officer,  then  of  Assistant  Commissioner, thereafter of Deputy Commissioner and 779 finally  there   is  the  post  of  Selection  Grade  Deputy Commissioner. The  service is  governed by the Special Rules for the  Tamil Nadu  Commercial Taxes  Service (the "Special Rules"). Recruitment  to the  junior most  post,  the  Joint Commercial Tax  Officer, is  made by  (i) direct recruitment and (ii)  recruitment by transfer from Deputy Commercial Tax Officers in  the State Commercial Taxes Subordinate Service. Permanent vacancies  in the  posts of  Joint Commercial  Tax Officer are  filled by  direct recruitment and by "transfer" recruitment in  the proportion  1:2. The  higher  posts  are filled by  promotion from  officers in the category of posts immediately below.  Under rule 2(b) of the Special Rules all promotions are  to be  made on  the  grounds  of  merit  and ability, seniority  being considered  only where  merit  and ability are  equal. Rule  5(c) provides  that  every  person appointed as  a Joint  Commercial Tax  Officer  must  be  on probation for  at least  two years  on duty;  in the case of direct recruitment  the probationary  period commences  from the date on which the Officer completes his training, and in the case  of recruitment  by transfer  it commences from the date the  officer joins  duty. Under rule 7(b) the period of training  of   a  direct  recruit  does  not  count  towards probation.      The petitioner  was recruited  to the  cadre  of  Joint Commercial Tax Officers as a direct recruit in 1966, and was posted for  training which  he joined  on  6th  June,  1966; thereafter he  completed  the  probationary  period  of  two years. On  16th August,  1972 the petitioner was promoted to the post  of Commercial  Tax Officer.  The second respondent was promoted  as Commercial  Tax Officer  on 17th  December, 1972.      Promotion to  the next  higher category  of posts,  the Assistant  Commissioners,   followed.  The   petitioner  was promoted as  Assistant Commissioner  on 14th  January,  1976 while the  second respondent  was promoted  on 26th  August, 1976.      Meanwhile, by  G.O. Ms.  No. 4103  dated 9th July, 1973 the Government passed an order notifying the combined inter- se seniority list of directly recruited Joint Commercial Tax Officers during  the years  1964 to  1967 and the transferee Joint Commercial  Tax Officers  recruited during  the  years 1964 and  1966 on  the basis  of the principles set forth in that order.  The seniority list reflected the cyclical order based on rule 2(c) of the Special Rules, that is to say, (i) direct recruit  (ii)  transferee  recruit  (iii)  transferee recruit. The  petitioner was  shown in  the "1966  list"  at serial No. 43 of the overall seniority list and 18th August, 1967 was shown as the date of commencement of his probation. The second  respondent was  also shown  in the 1966 list, at serial No.  52 with  25th  January,  1967  as  the  date  of commencement of his probation. 780      The validity  of the  combined inter-se  seniority list

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was challenged  by two  writ petitions,  Writ Petitions Nos. 2016 and  2017 of  1972 filed  by certain  other officers in respect of  the ranking  from serial  number  51  to  serial Number 78.  The petitioner  was not  a  party  to  the  writ petitions. The  writ petitions  were allowed  by the  Madras High Court  by its  judgment dated 16th September, 1975. The High Court  took note  of the  fact that  no rules  had been framed indicating  how the  inter-se seniority  between  the direct recruits and the transferee recruits had to be fixed. The High  Court quashed  the seniority  list and  directed a fresh determination  of the  inter-se seniority on the basis of three principles:      1.   Each year should be taken as a unit for fixing the           inter-se seniority.      2.   Persons not  actually appointed  in the  year 1966           should not be included in the 1966 year’s list and           their  seniority   should   be   determined   with           reference to  the date  of their  joining as Joint           Commercial Tax Officers; and      3.   The date  on which  an officer commences probation           is the  proper criterion  for fixing  the inter-se           seniority.      Taking those  principles into  account, the  Government then prepared  a fresh  combined inter-se seniority list and published it  by an  order set  forth in G.O. No. 2228 dated 27th December,  1977. The second respondent was now shown at serial number  48 and  the petitioner  was shown  at  serial number 49 in the 1967 list.      The  petitioner,   apprehensive  that   the   seniority assigned to  him in  the second  combined inter-se seniority list of Joint Commercial Tax Officers would prejudice him in the  promotions  to  be  made  to  the  category  of  Deputy Commissioners, has challenged the validity of that seniority list.      The petitioner  contends that  the High  Court  has  no power to  lay down  the principles  for determining inter-se seniority between  direct recruits  and transferee  recruits and, in any event, his seniority cannot be determined on the basis of the principles laid down by the High Court inasmuch as he  was not a party to the writ petitions. The petitioner also takes exception to the statement contained in paragraph 16 of the State Government’s counter affidavit to the effect that the  seniority of  a Government  Officer in  the  lower category is  also the  basis for  assigning seniority in the higher  category.  Great  emphasis  has  been  laid  by  the petitioner on  the circumstance  that  he  joined  as  Joint Commercial Tax Officer earlier than the second respondent. 781      In our  opinion, the  principles which  the High  Court culled  out  as  the  basis  for  determining  the  inter-se seniority of  Joint Commercial  Tax Officers are in the main drawn from  the rules  governing the service. The petitioner cannot claim  that for  the purpose of seniority has service must be  considered with  reference to  the date on which he commenced the  period of training. The special Rules require that a  direct recruit  must undergo  a period  of training. They also  provide that  he must  pass through  a period  of probation. They  further declare that the period of training will not  count as  a period spent on probation and that the probationary period  commences only  when the training ends. That  being  so,  the  relevant  date  for  considering  the petitioner’s seniority  is 18th  August, 1967.  The rules do not contemplate  any credit  being given  for the  period of training undergone  by a  direct recruit and, therefore, the fact that  he was appointed in 1966 is of little moment. The

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second respondent  joined the  post of  Joint Commercial Tax Officer as  a transferee  recruit and  therefore the date of commencement  of  his  probation  was  25th  January,  1967. Clearly, he entered service effectively from an earlier date than the petitioner.      Now having regard to the circumstance that the cadre of Joint Commercial  Tax Officers  is drawn  both  from  direct recruits and  transferee recruits, it is necessary to have a single combined  inter-se seniority  list. There  can be  no quarrel with  the principle  that officers  whose  effective entry into  the service pertains to a particular year should be regarded  as a unit in themselves for fixing their inter- se seniority.  Correctly, therefore,  the petitioner and the second respondent have been placed in the 1967 list. We have already observed  that the  effective date on which a direct recruit joins  as a Joint Commercial Tax Officer is the date on which he commences his probation. In the determination of inter-se  seniority,   the  High   Court  has  followed  the provision in  the Special  Rules that  the  posts  of  Joint Commercial Tax  Officers are  to be filled in the proportion of 1  : 2  between direct  recruits and transferee recruits. The cyclical  order in which the vacancies will be filled on that basis  are provided  by the  order  of  the  Government published in  G.O. Ms.  No. 4103 dated 9th July, 1973. Where the rules are specifically silent there is no doubt that the Government is  entitled to  make an  order  filling  up  any lacuna or  uncovered gap  in  the  rules.  It  may  also  be observed that there is good reason in the principle followed in this case that seniority should be based on the length of effective service.  The date  of confirmation in a post then loses its relevance.      In regard  to the  contention of the petitioner that he was not  a party  to the  writ petitions decided by the High Court and that, therefore, the 782 principles laid  down in  the High Court judgment should not be applied  to him,  we think  the submission  to be without force. The  principles propounded  by  the  High  Court  are principles of  general application  and drawn from the rules governing the service and the concepts implied therein. They are not principles applicable peculiarly only to the parties to the  writ petitions.  Indeed, we  find no  fault with the terms in which the principles have been enunciated. They are principles which  could legitimately  form the  basis  of  a combined  inter-se   seniority  list  in  respect  of  Joint Commercial  Tax   Officers.  Having   due  regard   to   the considerations mentioned  above, we  are of opinion that the places  assigned   in  the  second  seniority  list  to  the petitioner and  the second  respondent truly represent their relative seniority.      We may  also observe that the second seniority list was prepared  after   issuing  notice   to  the  petitioner  and affording him  an opportunity  to be heard in the matter. It was after  all the  objections had  been considered that the list was  finally drawn up. As regards the point whether the seniority of  the petitioner in the category of posts higher than the category of Joint Commercial Tax Officers should be determined on the basis of his seniority as Joint Commercial Tax Officer,  that  is  a  question  which  does  not  arise presently. No combined inter-se seniority list in respect of the cadre  of Assistant  Commissioners or  of  higher  posts appears to  have been  drawn up. There is no material before us to  show that it has and, if it has, what is the position of seniority  assigned to  the petitioner  therein.  In  the circumstances we  think it  premature to express any opinion

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on this point.      The  second   seniority  list   was  prepared  on  27th December, 1977. The writ petition was filed in this Court in May,  1979.   The  gross   delay,  plainly  apparent,  would constitute  another   ground  for   denying  relief  to  the petitioner. But as, in our judgment, the petitioner fails on the merits  we need  not go  further into  the  question  of laches.      The  petition  fails  and  is  dismissed,  but  in  the circumstances there is no order as to costs. S.R.                                      Petition dismissed 783