(Prayer: Writ Petition is filed under Article 226 of Constitution of India, praying to issue a Writ of Certiorarified Mandamus, to call for the records of the first respondent comprised in his proceedings in G.O. (Ms.) No.132 Commercial Taxes and Registration (E2) Department dated 18.10.2013 issued by the first respondent and quash the same as arbitrary and illegal and consequently direct the respondents 1 to 3 to place the petitioner as senior to the respondents 4 to 10 herein and promote the petitioner herein as Deputy Commissioner of Commercial Taxes with all attendant benefits and seniority with retrospective effect from the date on which the petitioner's juniors were promoted under the impugned proceedings.)

1. Heard the learned counsel for the petitioner and the learned Government Advocate appearing for the respondents 1 to 3 and perused the records.

2. The petitioner by the present writ petition has assailed the action of the first respondent in issuing proceedings vide G.O.Ms.No.132, Commercial Taxes (E-2) Department dated 18.10.2013, whereby the temporary list of Assistant Commissioners (Commercial Taxes) fit for promotion as Deputy Commissioners (Commercial Taxes) for the year 2013 is notified, as being illegal and arbitrary and to quash the same with a consequential direction to the respondents 1 to 3 to place the petitioner as senior to the respondents 4 to 10 and grant promotion to the petitioner as Deputy Commissioner of Commercial Taxes with all attendant benefits and seniority with retrospective effect from the date on which the petitioner's juniors were promoted to the said post under the impugned proceedings.

3. Briefly put the case of the petitioner is that after joining the service in the year 1985 as Junior Assistant, his probation was declared on 25.03.1987; that when he was not given promotion to the post of Assistant Commercial Tax Officer (ACTO) during the year 1994, he had approached the Tamil Nadu Administrative Tribunal by way of O.A.No.6899 of 1997; that the Tribunal vide order dated 20.08.2001 allowed the said Original Application; that pursuant to the order of the Tribunal, the third respondent by proceedings dated 26.09.2022 granted him promotion to the post of ACTO with retrospective seniority from 01.03.1994 by assigning Rank 87 in the list of ACTOs of the year 1994; and that upon being promoted to the post of ACTO, the petitioner’s service came to be governed by the provisions of the Tamil Nadu Commercial Taxes Subordinate Service Rules.

4. It is the further case of the petitioner that subsequently, he was promoted as Deputy Commissioner (DCTO) with effect from January 2007, vide proceedings of the second respondent dated 08.01.2007; that during the year 2008, with effect from 30.07.2008, all the posts from the level of ACTO to Joint Commissioner in the Commercial Taxes Department were redesignated; that on such re-designation, the existing post of DCTO was redesignated as Commercial Tax Officer (CTO); and that he was discharging his duties in the re-designated post of Commercial Tax Officer from 30.07.2008.

5. Petitioner contended that in terms of Rule 2 of the Special Rules for the Tamil Nadu Commercial Taxes Service (hereinafter referred to as “TNCTS”), the method of recruitment for the vacancies in the category of Assistant Commissioners (CT) viz., the next higher level of post, is (i) by direct recruitment or (ii) recruitment by transfer from the category of CTOs in the Tamil Nadu Commercial Taxes Subordinate Service or (iii) recruitment by transfer from the category of Section Officers of the Tamil Nadu Secretariat in Category 3 in Class XII of the Tamil Nadu General Service, subject to fulfilling the eligibility conditions prescribed in Rule 4 read with the Annexure to the TNCTS.

6. Petitioner further contended that during the year 2010, since he had fulfilled all the conditions laid down in the TNCTS, his name was included in the temporary list of CTOs fit for promotion as Assistant Commissioners of Commercial Taxes for the year 2010-2011 vide G.O.(D).No.124 dated 05.07.2010, issued by the first respondent; that simultaneously with the issuance of the aforesaid G.O, the first respondent issued G.O.(D).No.125 dated 05.07.2010, promoting the petitioner to the post of Assistant Commissioner (CT); and that the petitioner had joined duty as Assistant Commissioner on 09.08.2010 and has been performing his duties in the said post.

7. It is the further case of the petitioner that in terms of Rule 5 of the TNCTS Rules, every person appointed as Assistant Commissioner (CT) shall be on probation for a period of two years within a continuous period of three years from the date on which he joins the training (in the case of direct recruitment) and in the case of recruitment by transfer from the Tamil Nadu Commercial Taxes Service the date on which he joins duty; that during the said period not less than one year shall be in the post of Assistant Commissioner (Commercial Taxes) engaged in assessment work; that the petitioner completed his probation, as stipulated in Rule 5 on 06.09.2012 by fulfilling the dual condition; and thus, the petitioner became eligible for being appointed to the post of Deputy Commissioner (Commercial Taxes).

8. Petitioner further contended that the first respondent, in the mean time, had issued G.O.(D).No.325 dated 28.06.2013, estimating the vacancies for the recruitment to the post of Deputy Commissioner (CT) for the year 2013 to be 98; that the second respondent, pursuant to the issuance of the aforesaid G.O, sent a proposal for the drawing of a temporary list of Assistant Commissioners (CT) fit for promotion as Deputy Commissioners (CT) for the year 2013; that the first respondent examined the proposal sent by the third respondent and issued G.O.(Ms).No.132 dated 18.10.2013, ordering that 40 Assistant Commissioners (CT) (as against the 98 estimated posts) mentioned in paragraph 4 of the G.O.(Ms).No.132 be included in the temporary list of Assistant Commissioners (CT) fit for promotion as Deputy Commissioners (CT) for the year 2013; that the first respondent, while approving and issuing the aforementioned G.O and ordering Assistant Commissioners (CT) fit for promotion, exercising the powers conferred under Rule 48 of the General Rules under Part – II of the Tamil Nadu State and Subordinate Rules, relaxed the provisions in Explanation- III under Rule 4 (a) of the General Rules in respect of 40 officials mentioned in the G.O and relaxed the Special Rules 4 (c) and 5 (a) of the Tamil Nadu Commercial Taxes Services relating to declaring satisfactory completion of the period of probation and completion of one year of assessment work in respect of certain Assistant Commissioners (CT) who were juniors to the petitioner herein; that though the petitioner had completed his probation and was eligible to be declared as an ‘approved probationer’ as early as on 06.09.2012, the third respondent did not issue order of declaration of probation immediately upon completion of his probation, even though Rule 5(b) of the Tamil Nadu Commercial Tax Service Rules provides for the declaration of probation as soon as possible by issuing an order; that inspite the fact that the petitioner possessing required qualification and completed the period of probation as mandated under the Rules, the names of the private respondents 4 to 10 herein, who were directly recruited to the post of DCTO (ACTOs, prior to redesignation) long after the petitioner's promotion to the post of DCTO, have been included in the list of persons eligible for promotion to the post of Deputy Commissioner (CT), despite the fact that they have not been declared to have satisfactorily completed the period of their probation and the name of the petitioner has been excluded in the list.

9. The petitioner further contended that due to the belated action on part of the second respondent in declaring the probation of the petitioner in the post of Assistant Commissioner till 07.08.2014, even though he had completed his probation on the Afternoon of 06.09.2012, has seriously jeopardized the career prospects of the petitioner in securing timely promotion to the post of Deputy Commissioner (CT) under G.O.(Ms)No.132 dated 18.10.2013; and that the aforesaid action of the respondents 1 to 3 in not declaring the petitioner’s promotion immediately on the date of completion of his probation and using such non-declaration, excluding the petitioner from being included in the eligible list of Assistant Commissioners fit for promotion to the post of Deputy Commissioner is illegal, arbitrary and makes the impugned proceedings liable to be quashed.

10. Counter affidavit on behalf of the respondents 1 to 3 is filed.

11. The respondents by the counter affidavit while denying the writ averments mainly contended that the estimation of vacancies for the post of Deputy Commissioner (CT) for the year 2013 was fixed at 98 vide G.O. (D).No.325 dated 20.06.2013 and upon making the said estimate of vacancies, 41 Assistant Commissioners, who were part of the permanent cadre strength alone were included in the list of Deputy Commissioner for the year 2013; that as the petitioner belongs to the transferee category, and not being included in the permanent list of Assistant Commissioners, his name was not considered for inclusion in the list; that inter se seniority fixation between the direct recruits and transferees was the subject matter of consideration before this Court in W.P.No.12786 of 1985; that this Court by order dated 19.06.1986 had given detailed guidelines as to how the inter se seniority has to be fixed; that the said order of this Court was affirmed by the Hon'ble Apex Court by dismissing the Civil Appeal No.1454 of 1987 preferred by the State; that the Hon'ble Apex Court, while dismissing the Civil Appeal, directed the respondents to revise inter se seniority of DCTOs following the principles and guidelines laid down by this Court on the basis of the judgment in W.P.No.12786 of 1985; that the respondents on dismissal of the Civil Appeal, followed the guidelines issued by this Court in the aforementioned writ petition and revised the inter se seniority.

12. The respondents further contended that the aforesaid revision of inter se seniority was challenged by the direct recruits on the ground that the same was not in tune with the directions given by this Court; that this Court once again in W.P.No.26121 of 2004 directed the respondents to draw the inter se seniority as per the order of this Court in W.P.No.12786 of 1985 as affirmed by the Hon'ble Apex Court; that another direct recruit, Thiru.A.Jothinathan, also filed writ petition vide W.P.No.7540 of 2006 seeking for revising the list in higher cadre also, contending that the inter se seniority list was not properly considered and ordered by following the Hon'ble Apex Court directions; that the direct recruits thereafter filed Contempt Petition vide Cont.P.No.263 of 2007 in Civil Appeal No.1454 of 1987 before the Hon'ble Apex Court; that the Hon'ble Apex Court in the said Contempt Petition confirmed the principle evolved by the High Court in its order dated 19.06.1986 in W.P.No.12786 of 1985 with regard to the fixation of inter se seniority between the transferees and direct recruits and directed the respondents to publish the fresh inter se seniority list; that in pursuance of the aforesaid direction of the Hon'ble Apex Court dated 04.03.2009, the inter se seniority list from the cadre of ACTO was prepared in consonance with the principles enunciated by this Court in W.P.No.12786 of 1985, as affirmed by the Hon'ble Apex Court dated 10.02.1999 in Civil Appeal No.1454 of 1987, for the year 1968 to 2006 and published the same on 04.05.2009.

13. It is the further case of the respondents that aggrieved by the aforesaid revisions, certain individuals, namely transferees like the petitioner filed Writ Petitions before this Court and this Court by order dated 06.04.2011 in W.P.No.11618 of 2009 and batch, upheld the revision and dismissed the writ petitions filed against the revision of seniority; that as per the revision, the name of the petitioner in the permanent list of DCTO (ACTO prior to redesignation) for the year 2004, was at Rank No.5; that the respondents 4 to 10, who the petitioner claims, are his juniors, were included in the permanent list of DCTO (ACTO prior to redesignation) for the year 2002 itself and were included in the permanent list of CTO (pre redesignation - DCTO) for the year 2005-2006 vide proceedings of the Principle Secretary/Commissioner of Commercial Taxes dated 18.08.2011; and that the respondents 4 to 10 thereafter were included in the permanent list of Assistant Commissioner (CTO- prior to re-designation) for the year 2008-2009 in the ratio of 2:1 seniority published in G.O.Ms.No.116 dated 24.08.2012; that the name of the petitioner did not figure in the permanent list of Assistant Commissioner; that as per the guidelines issued by this Court and affirmed by the Hon'ble Apex Court, the petitioner is to be considered as junior to the respondents 4 to 10 as he was not in the permanent list of DCTO; that the petitioner is yet to become part of the cadre strength in the feeder category of Assistant Commissioner (Commercial Tax); thus, the petitioner cannot contend that the respondents 4 to 10, who are part of the permanent cadre strength in the feeder category of Assistant Commissioner (CT) being juniors to the petitioner.

14. The respondents by the counter affidavit further contended that the petitioner was promoted as Assistant Commercial Tax Officer (now DCTO) on 26.09.2002 by including his name in the temporary list for the year 1994; that subsequently, he was also promoted as DCTO temporarily in the year 2007 (now re-designated as CTO); that the aforesaid promotions were all temporary pending fixation of inter se seniority; that subsequent to the orders of the Hon'ble Apex Court in Cont.P.No.263 of 2007 in Civil Appeal No.1454 of 1987, the revision of the permanent cadre of Deputy Commercial Tax Officer, Commercial Tax Officer, Assistant Commissioner and above was ordered and the said revision was upheld in a challenge by this Court; that as per the said revision to the permanent cadre, the name of the petitioner finds place in the permanent list of ACTO (re-designated as DCTO) of the year 2004 at Rank No.5 and is yet to be included in the permanent list of Assistant Commissioner (Commercial Taxes); that though the petitioner had joined duty as Assistant Commissioner (Commercial Taxes) on 09.08.2010, the same was by way of temporary promotion; that the petitioner did not mention the year in which he was included in the permanent list as Commercial Tax Officer/Assistant Commissioner, which is vital for considering him as eligible for promotion to the post of Deputy Commissioner (CT).

15. The respondents further contended that the declaration of probation in the cadre of Assistant Commissioner (CT) is only with reference to his promotion in temporary panel and would not enable him to claim inclusion in the permanent or substantive list of Assistant Commissioner (CT) for being included in the list of Assistant Commissioner (CT) fit for promotion to the post of Deputy Commissioner (CT) as per the directions of the Hon'ble Apex Court.

16. The respondents further contended that as private respondents 4 to 10 were directly recruited Deputy Commercial Tax Officer (pre redesignation – ACTO) and being senior to the petitioner in the permanent cadre of Deputy Commercial Tax Officer/ Commercial Tax Officer/Assistant Commissioner, their names were included in the list of the persons eligible for promotion to the post of Deputy Commissioner (CT) and the challenge to the said seniority in the permanent cadre before this Court by way of W.A.No.2280 of 2011 was rejected by order dated 31.08.2016.

17. The respondents also contended that though the respondents 4 to 10 who were direct recruits to the post of ACTO had lesser years of service experience, merely because relaxation of the Rules was granted for inclusion of their names in the list of Assistant Commissioner fit for promotion, the petitioner cannot contend that the said action to be illegal and arbitrary; that the petitioner unless until the forms part of permanent cadre strength as per the orders of the Hon'ble Apex Court in Cont.P.No.263 of 2007 in Civil Appeal No.1454 of 1987, cannot be permitted to claim as fit for promotion to the immediate higher cadre; that since, the petitioner is yet to become part of the permanent cadre in the category of Assistant Commissioner, he cannot lay a challenge to the inclusion of respondents 4 to 10 in the list for promotion to the post of Deputy Commissioner (CT).

18. The respondents further contended that the petitioner was occupying the non-substantive post/temporary post and as such, he cannot compare himself with respondents 4 to 10 without he himself being included in the permanent cadre for him to be eligible for being promoted to the next higher post.

19. Contending as above, the respondents seek for dismissal of the writ petition.

20. I have taken note of the respective contentions urged.

21. Though the petitioner had claimed respondents 4 to 10 to be his juniors, it is to be noted that the said claim of the petitioner is in the cadre of ACTO. The respondents 4 to 10 are the direct recruits to the post of ACTO while the petitioner is a transferee to the post of ACTO from the post of Junior Assistant. In the dispute between the direct recruits and transferee in relation to the fixation of inter se seniority, this Court, by order dated 19.06.1986 in W.P.No.12786 of 1985, had issued guidelines and the said order having been affirmed by the Hon'ble Apex Court in Civil Appeal No.1454 of 1987, and the said guidelines being directed to be followed by orders passed in subsequent writ petitions filed challenging the inter se seniority fixed, it is not open for the petitioner to revisit or reagitate the said settled issue.

22. Though it is contended by the petitioner that a Special Leave Petition is pending consideration before the Hon'ble Apex Court, wherein the petitioner had also impleaded himself, that by itself cannot and would not operate as a stay of order passed by this Court in W.P.No.12786 of 1985 as affirmed by the Hon'ble Apex Court.

23. Further, the Hon'ble Apex Court while disposing of the Civil Appeal No.1454 of 1987 having held that the seniority is to be fixed in relation to the permanent post in the cadre and since, admittedly the petitioner has not been included in the permanent list of ACTO (redesignated as DCTO) till 2004, while the respondents 4 to 10, who were direct recruits to the said post, being included in the permanent list in the year 2002, the petitioner cannot claim the respondents 4 to 10 to be his juniors without showing to this Court that he having been included, prior to the respondents 4 to 10, in the permanent list of the year 2002.

24. The petitioner can claim respondents 4 to 10 to be his juniors and he being excluded from the list, only if he is successful by establishing his name being included in the permanent list of the year 2002 and not in subsequent year, merely on the basis of his joining the service at an earlier point of time than the respondents 4 to 10, who were direct recruits to the post of DCTO (ACTO) for which the recruitment was by way of direct recruitment and also by transfer by promotion. The petitioner falls under the later category ie. transfer by promotion.

25. Since, the seniority between the direct recruits and transferees having been determined on the basis of the guidelines issued by this Court in W.P.No.12786 of 1985 as affirmed by the Hon'ble Apex Court in Civil Appeal No.1454 of 1987 and in Cont.P.No.263 of 2007, the petitioner cannot continue to persist with his claim of the respondents 4 to 10 being his juniors without he himself being appointed against the substantive vacancy, thereby becoming entitled to be included in the permanent list, in order to claim that by working as Assistant Commissioner he became eligible for promotion to the post of Deputy Commissioner for the year 2013 and that the exclusion by the respondents while issuing the impugned proceedings, to be illegal.

26. Though the petitioner claims that it is the respondents who failed to prepare the permanent list, it is to be noted that the petitioner, till the filing of the present writ petition, notwithstanding the fact of he having been granted temporary promotion from the post of ACTO to DCTO and to CTO from the date of joining his service as Junior Assistant in the year 1985 did not feel aggrieved or felt the need to question the inaction of the respondents and on the other hand was contended as long as he was granted promotions, though temporary in nature, till the respondents issued impugned proceedings including the names of the respondents 4 to 10 for being promoted to the post of Deputy Commissioner (CTO). The inaction on the part of the petitioner all through this period can also be considered as the petitioner being acquiesced of the matter and therefore, cannot be permitted to raise the said issue after a lapse of such a long period.

27. Further, the petitioner, on being included in the permanent list of DCTO (ACTO) in the year 2004 at Rank No.5, while respondents 4 to 10 being included in the permanent list of the year 2002, did not question his exclusion in the permanent list of the year 2002 and being included in the panel of the year 2004 or inclusion of respondents 4 to 10 in the permanent list of the year 2002, for him now to claim that the respondents 4 to 10 to be his juniors.

28. Since, the respondents 4 to 10 formed part of the permanent list of DCTO for the year 2002 and being promoted to the post of CTO (formerly DCTO) during the year 2005-2006 and were included in the permanent list of Assistant Commissioner (formerly CTO) for the year 2008-2009 under G.O.Ms.No.116 dated 24.08.2012 and in the absence of any challenge to the inclusion of the respondents 4 to 10 in the permanent list by the aforesaid proceedings, this Court is of the view that the claim now being made by the petitioner is only an afterthought and to prevent the respondents from effecting promotions to the next higher level i.e., Deputy Commissioner of the persons who are included in the permanent list as per the guidelines issued by this Court in its order dated 19.06.1986 in W.P.No.12786 of 1985 as affirmed by the Hon'ble Apex Court in Civil Appeal No.1454 of 1987. Thus, this Court is of the considered view that the claim made by the petitioner of respondents 4 to 10 being his juniors cannot be countenanced.

29. In view of the above, the challenge to the impugned proceedings by the present writ petition is devoid of merit and without any substance.

30. Accordingly, the present writ petition fails and is dismissed. Consequently, connected Miscellaneous Petitions are closed. No order as to costs.