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https://x.com/sekarreporter1/status/1730435401209532846?t=W6t1o-UuUs7dvSJ9cvXHeQ&s=08 For appellants : Mr.Haza Nazirudeen Additional Advocate General assisted by Mr.M.Venkateswaran Special Government Pleader For respondent : Mr.V.Prakash Senior Advocate for Mr.K.Sudalai Kannu Tax case full order. 13.Insofar as the laches is concerned, it is settled law that when there is considerable delay on the part of the aggrieved party to approach the court and when such delay has created a vested and indefeasible right in favour of another person by lapse of time, the discretion under Article 226 of the Constitution, ought not to be entertained. It is not in dispute that the respondent/writ petitioner has been submitting various representations and communications demanding revision of seniority. However, it is only in 2019, the request has been rejected and immediately the writ petition has been filed. It is also beyond any doubt that the respondent/writ petitioner was originally placed above the 3rd appellant on the date of appointment and when the permanent list was prepared in 2012, the respondent/ writ petitioner was fully qualified. In this case, we have already held that the temporary promotion will not confer any right and therefore, no vested right can accrue to the 3rd appellant. The respondent/writ petitioner has been continuously agitating her cause with the official respondents for refixation of seniority, which ultimately culminated into the impugned order, that was subject matter of the writ petition. Therefore, in the mind of this court, in the facts and circumstances of the case, the claim of the respondent / writ petitioner is not hit by laches. It is also relevant to point out at this juncture that the plea of laches was not taken before the Learned Judge and has been raised only in the appeal. In view of the findings rendered above, we are not inclined to entertain this plea at this stage. 14.In fine, the writ appeal deserves to be dismissed and is accordingly, dismissed. No costs. Connected miscellaneous petition is closed. [R.M.D, J.] [M.S.Q, J.] 06.06.2023 r n s Speaking Order / Non-speaking order Internet : Yes. Index : Yes /No To 1.The Secretary, Commercial Taxes and Registration Department, The Secretariat, Fort St. George, Chennai – 600 009. 2.The Commissioner of Commercial Taxes, Ezhilagam, Chepauk, Chennai – 5. R. MAHADEVAN, J. and MOHAMMED SHAFFIQ, J. r n s W.A.No.1587 of 2022 & C.M.P.No.10537 of 2022 06.06.2023

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IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 06.06.2023
CORAM :
THE HON’BLE MR. JUSTICE R. MAHADEVAN
AND
THE HON’BLE MR. JUSTICE MOHAMMED SHAFFIQ
W.A.No.1587 of 2022 and
C.M.P.No.10537 of 2022
1.The State of Tamil Nadu,
Rep. by its Secretary,
Commercial Taxes and Registration Department, The Secretariat, Fort St. George, Chennai – 600 009.
2.The Commissioner of Commercial Taxes, Ezhilagam, Chepauk, Chennai – 5.
3.M.Geetha
Assistant Commissioner,
O/o. The Commissioner of Commercial Taxes,
Ezhilagam, Chepauk, Chennai – 600 005.
Vs.

J.Anbutamilarasi,
Assistant Commissioner (Review),
O/o. the Joint Commissioner (Intelligence-II),
PAPJM Building, Greams Road, … Appellants
Chennai. … Respondent
Writ Appeal filed under Clause 15 of the Letters Patent, against the order dated 23.03.2020 passed by the learned Judge in W.P.No.22866 of 2019.
For appellants : Mr.Haza Nazirudeen
Additional Advocate General assisted by Mr.M.Venkateswaran
Special Government Pleader
For respondent : Mr.V.Prakash Senior Advocate for Mr.K.Sudalai Kannu
JUDGMENT
(Judgment of the Court was delivered by R. MAHADEVAN, J.)
This intra-court appeal has been filed by the appellants questioning the correctness of the order dated 23.03.2020 passed by the learned Judge in W.P. No.22866 of 2019.
2.The respondent herein has filed the aforesaid writ petition to issue a writ of certiorarified mandamus, calling for the records in connection with the order viz., memo no.P1/17387/2019 dated 25.06.2019 issued by the second appellant, quash the same and consequently, direct the appellants 1 and 2 to fix the respondent’s seniority in the cadre of Commissioner above the 3rd respondent.

3.The case of the respondent before the writ court was that she joined the service of the Commercial Tax Department through TNPSC as Deputy Commercial Tax Officer (formerly known as ACTO) in the year 2008. She had successfully completed her probation on 03.06.2011, which is within the three years period prescribed under the Tamil Nadu Commercial Taxes Subordinate Service Rules. Upon fixation of inter-se seniority between the direct recruit DCTOs and the promotees, who were recruited by transfer, the seniority of the respondent was shown as 70, whereas the third appellant was in the rank of 71, in the post of DCTO for the year 2008. While so, the third appellant was suddenly placed above the respondent in the panel of CTO in the year 2011 and was given promotion ahead of the respondent for no mistake committed by her, on the ground that she has completed all the exams prescribed before the crucial date for drawing panel to the post of CTO viz., 01.03.2011. Aggrieved by the same, the respondent submitted various representations from 15.08.2012, and lastly on 10.05.2019 to the second appellant requesting to rectify the illegality committed in the proceedings relating to fixation of seniority. By memo dated 25.06.2019, the representation of the respondent was rejected. Challenging the same, the writ petition came to be filed by the respondent.
4.The learned Judge, after hearing both sides, allowed the writ petition, by order dated 23.03.2020, which is impugned herein. For better appreciation, the relevant paragraphs of the same are extracted hereunder:
“13.The point in issue, in the case on hand is whether the petitioner is entitled to retain her rank in the face of her promotion being delayed in view of her probation being not declared as on 01.03.2011 or not. It is an admitted fact that she had cleared the examination for declaration of probation within 3 years of stipulated period. When the petitioner has admittedly cleared the examination within the stipulated period, this Court is unable to appreciate as to how she can be denied her due seniority as assigned to her originally at the time of her appointment vis-a-vis the third respondent and others.
14.The learned Senior counsel places reliance on Rule 35(a) or 35(aa) of the erstwhile Tamil Nadu State & Subordinate Service Rules, as the case may be or present Section 40 of the Tamil Nadu Government Servants (Conditions of Service) Act, 2016, would undoubtedly bolster the claim of the petitioner that her seniority cannot be altered to her disadvantage. The import of the above Rule 35(a), 35(aa) or Section 40 40(1) or 40(2) is very clear that a senior employee cannot be denied due seniority merely by virtue of the fact that her junior is promoted ahead of the senior. Ofcourse there is an exception given in the Rule or Section, but however that exception is not the case here. When a inter se seniority has been fixed, such seniority will continue to be maintained even in promotion to the next higher cadres unless a senior person suffers from any disqualification during his or her career.
15.In the case on hand, the facts disclose no such disqualification suffered by the petitioner and no such disqualification was pointed out by the Official respondents. The fact that petitioner successfully cleared the examination within stipulated period is also admitted by the official respondent. In the said circumstances, the lowering the seniority of the petitioner vis-a-vis third respondent and others in cadre of Commercial Tax Officer cannot be countenanced either in law or on facts. The reasons as stated by the official respondents for altering the seniority of the petitioner to her detriment and to the advantage of her juniors are legally unacceptable and the same are to be discarded as being contrary to the Rules.
16.In such circumstances, this Court has no hesitation in allowing the writ petition. The second respondent communication in memo No.P1/17387/2019 dated 25.06.2019 is hereby set aside and the respondents 1 & 2 are directed to fix the petitioner’s seniority in the cadre of Commercial Tax Officer also in the next higher cadre of Assistant Commissioner on the basis of her original ranking assigned to her at the time of her appointment as DCTO.
17.The respondents 1 & 2 are directed to pass appropriate orders as indicated above within a period of 6 weeks from the date of receipt of copy of this order. With the above observations, the writ petition stands allowed. No costs.”
Challenging the above order, the appellants / State have come up with this appeal.
5.The learned Additional Advocate General appearing for the appellants has contended that the respondent/writ petitioner did not qualify herself for the Commercial Tax Officer panel for the year 2011 and that, she passed all the Departmental Tests and qualified herself only on 03.06.2011 and therefore, her probation was declared with effect from 03.06.2011 in the cadre of Deputy Commercial Tax Officer. In view of the same, as per the rule in existence, her immediate junior in the cadre of Deputy Commercial Tax Officer List, viz., the third appellant, who had qualified herself by passing all the Departmental Tests and whose probation was declared earlier to the writ petitioner, was considered for promotion ahead of the writ petitioner, to be included in the Commercial Tax Officer Panel for the year 2011. It is further submitted that not only the third appellant, who is the immediate junior to the writ petitioner, but also other juniors were given promotion, since they had qualified themselves on the date of drawal of Commercial Tax Officer Panel for the year 2011. In support of the said submission, the learned Additional Advocate General has relied upon the judgments of the Hon’ble Apex Court in M.P.Chandoria v. State of M.P. and others [(1996) 11 SCC 173], State of M.P. v. Ramkinkar Gupta and Others [(2000) 10 SCC 77] and OM Prakash Shrivastava v. State of M.P. and another [(2005) 11 SCC 488].
6.Continuing further, the learned Additional Advocate General appearing for the appellants submitted that the panel list of Commercial Tax Officer for the year 2011 is temporary one and as per Section 17(i) of the Tamil Nadu
Government Servants (Conditions of Service) Act, 2016 (Tamil Nadu Act 14 of 2016) erstwhile Rule 10(a)(i) of the General Rules for Tamil Nadu State and Subordinate Services, one who possesses the qualification prescribed for the post could be considered for temporary promotion. It is also submitted that the respondent without challenging the seniority for the years 2011, 2012 and 2014, has approached the writ Court only in the year 2019, merely on the basis of rejection of her representation, that too with delay and laches. To substantiate the same, the learned Additional Advocate General placed reliance on the judgments of the Apex Court in B.S.Bajwa and another v. State of Punjab [(1998) 2 SCC 523] and Vijay Kumar Kaul and other v. Union of India and others [(2012) 7 SCC 610]. Thus, he prayed for allowing this appeal by setting aside the impugned order passed by the learned Judge.
7.Per contra, the learned Senior Counsel appearing for the respondent / writ petitioner would contend that in the panel for inter-se seniority prepared for the post of Commercial Tax Officer from the post of Deputy Commercial Tax Officer in the year 2011, the respondent’s seniority was fixed at Sl.No.70/2008, while the third appellant’s seniority was fixed at Sl.No.71/2008, however, the third appellant was promoted to the post of Commercial Tax Officer, which violates the provisions of Rules 35(a) and 35(aa) of the erstwhile Tamil Nadu State and Subordinate Service Rules. It is further submitted that the respondent cleared all the examination for declaration of probation within three years of the stipulated period, but her name was not considered in the 2011 panel for promotion to the post of Commercial Tax Officer. The learned Judge, on a proper appreciation of facts, allowed the writ petition by the order impugned herein, which does not call for any interference by this court.
8.Heard the learned Additional Advocate General appearing for the appellants and the learned Senior Counsel appearing for the respondent and also perused the materials available on record carefully and meticulously.
9.From the pleadings and the contentions raised before us, we are faced with a situation wherein as per Rules 35 (a) and 35 (aa) of the Tamil Nadu State and Subordinate Service Rules, the seniority fixed at the time of appointment cannot be altered and on the other hand, it is contended by the Learned Additional Advocate General by placing reliance upon the Tamil Nadu Commercial Taxes Subordinate Service Rules that as per Rule 8, the period of probation is two years on duty within a continuous period of three years; that as per Rule 9, the probationer has to pass the tests prescribed therein within the period of probation; and as per Rule 11, no Assistant Commercial Tax Officer (designated as DCTO) shall be eligible for promotion as Deputy Commercial Tax Officer (designated as CTO), unless he has completed probation and his name was
included in the list of candidates in the list prepared as indicated in Rules 3(a) and 3(c)(i). Though in the first blush, the argument sounds correct, on a careful analysis of the Rules and the documents relied upon, it is with certain other riders as well, which are as under:
(a) That the post of ACTO was redisignated as DCTO and the post of promotion is that of CTO and not DCTO;
(b) That the rules produced and relied upon are applicable only to the post of two categories namely Deputy Commercial Tax Officer and Assistant
Commercial Tax Officer;
(c) Subsequently, the Rules have been amended and have been made applicable to CTO and DCTO and the qualifications have been altered accordingly.
(d) That as per Rule 3(a), appointment of Commercial Tax Officer either by promotion or recruitment by transfer shall be made from the list of approved candidates, subject to the availability of vacancies;
(e) That even as per the existing Rule 3(c)(i) and the new rule after redesignations, the candidates would have to obtain the qualifications in column(3) of the Annexure and the list has to be sent on the 1st March of the year. However, Rule 3(c)(ii) in the old Rules, and the new Rules remain the same and are significant. As per Rule 3(c)(ii), the Commissioner of Commercial Taxes shall estimate the number of persons, who are likely to be recruited by promotion and/or by transfer to that category between the 1st of March of that year and the 28th /29th February of the next year, reserve ten percent of the vacancies for the appointment of the persons recruited from the offices of the Commissioner of Commercial Taxes and Sales Tax Appellate Tribunal and the Departments of the Secretariat. Therefore, it is clear that due reservation has to be given for the people, who are likely to be qualified, implying that the intention of the Government was also to consider the persons who would be completing the probation before the cut off date of the next year;
(f) That the preparation of the list is subject to availability of vacancy. In the present case, only a temporary list for 2011 was published and permanent list was drawn only in 2012 for the first time, by which date the respondent/writ petitioner had qualified;
(g) The said rules have to read in tandem with the Tamil Nadu
Subordinate Service Rules as the original seniority cannot be altered; and
(h) That the respondent/writ petitioner, who has not suffered any
disqualification has also passed the test within the period of her probation.
10.Undoubtedly, right to promotion is not a fundamental right, but a right to be considered is indeed a fundamental right, once the candidate acquires the necessary qualification. Rule 6 (d) of the TNCTSS Rules, mandates a person to be eligible must possess the necessary qualification as determined in the Annexure. We have already discussed as to how the list is to be prepared. The admitted case of the Government itself is that the list for 2011 is only temporary and temporary promotions were only made. While so, once the writ petitioner had successfully completed the probation, the list must have been modified before the finalisation of the permanent list in 2012. It is settled law that the candidates or juniors who are granted temporary promotion ahead of the seniors gain no vested right. As per Rule 10 of the Tamil Nadu State Subordinate Service Rules, only a person with necessary qualification can be appointed temporarily to a post until the vacancy is filled up as per the Rules. In any case, such appointments cannot exceed a year from the date of his appointment. It is also settled law that the appointments would have to be made as per the rules. It will be useful to refer to the following judgments on this aspect:
(A) M.P. Palanisamy v. A. Krishnan [(2009) 6 SCC 428 : (2009) 2 SCC
(L&S) 205 : 2009 SCC OnLine SC 1166 at page 441]:
“42.We are not impressed by this, as we have already pointed out that under Rule 23(a)(i) of the Tamil Nadu State and Subordinate Services Rules, the persons who were in service, could not be rendered junior by the regularisation of the ad hoc candidates at a later stage. This GOMs No. 1813, therefore, has to be interpreted in the light of Rule 23(a)(i), which was a general rule and applicable to all the appointments. After all, when a clear reference was made to Rule 10(a)(i)(1), which was from the General Rules, there was no reason to make any exception and not to read Rule 23(a)(i) of the General Rules. For this reason, the argument must fail.
45.In para 14, this Court observed: (Paripoornam case [1992 Supp (1) SCC
420 : 1992 SCC (L&S) 415 : (1992) 19 ATC 653] , SCC p. 426)
“14. Apart from that, Rule 10(a)(i)(1) provides for making of temporary appointments when it is necessary in the public interest to do so owing to an emergency which has arisen for filling a vacancy immediately. Such appointments are made otherwise than in accordance with the procedure prescribed under the Rules. In the instant case the respondents were appointed temporarily and otherwise than in accordance with the Rules. They were later selected along with others for direct recruitment by the Public Service Commission. They were not entitled to count their temporary service for seniority. In A.P.M. Mayankutty v. Secy. [(1977) 2 SCC 360 : 1977 SCC (L&S) 274] this Court observed that the services rendered by the applicants under Rule 10(a)(i)(1) cannot be considered for the purpose of seniority as such appointment is a matter of stop-gap, emergency or fortuitous arrangement.”
47.In a recent decision in K. Madalaimuthu v. State of T.N. [(2006) 6 SCC 558 : 2006 SCC (L&S) 1451] this Court again reiterated the principles of fixation of seniority in case of the persons, who were temporarily appointed under Rule 10(a)(i)(1). This Court relied on V. Sreenivasa Reddy v. Govt. of A.P. [1995 Supp (1) SCC 572 : 1995 SCC (L&S) 579 : (1995) 29 ATC 495], as also, State of T.N. v.
E. Paripoornam [1992 Supp (1) SCC 420 : 1992 SCC (L&S) 415 : (1992) 19 ATC 653] . Both these cases dealt with Rule 10(a)(i)(1). Distinguishingly, relying upon the case law relied on by the respondents i.e. L. Chandrakishore Singh v. State of Manipur [(1999) 8 SCC 287 : 1999 SCC (L&S) 1460] this Court came to the conclusion that the High Court had erred in holding that the temporary appointees under Rule 10(a)(i)(1) were entitled to the seniority right from the date of their first appointment and not from their regularisation. Though the controversy involved is slightly different, the general principles would undoubtedly apply.”
(B) Malook Singh and others v. State of Punjab and others [MANU/SC/0795/2021 : (2021) 7 SCR 1080]:
“20.The law on the issue of whether the period of ad hoc service can be counted for the purpose of determining seniority has been settled by this Court in multiple cases. In Direct Recruits (supra), a Constitution Bench of this Court has observed:
“13. When the cases were taken up for hearing before us, it was faintly suggested that the principle laid down in Patwardhan case [(1977) 3 SCC 399: 1977 SCC (L&S) 391 : (1977) 3 SCR 775] was unsound and fit to be overruled, but no attempt was made to substantiate the plea. We were taken through the judgment by the learned counsel for the parties more than once and we are in complete agreement with the ratio decidendi, that the period of continuous officiation by a government servant, after his appointment by following the rules applicable for substantive appointments, has to be taken into account for determining his seniority; and seniority cannot be determined on the sole test of confirmation, for, as was pointed out, confirmation is one of the inglorious uncertainties of government service depending neither on efficiency of the incumbent nor on the availability of substantive vacancies. The principle for deciding inter se seniority has to conform to the principles of equality spelt out by Articles 14 and 16. If an appointment is made by way of stop-gap arrangement, without considering the claims of all the eligible available persons and without following the rules of appointment, the experience on such appointment cannot be equated with the experience of a regular appointee, because of the qualitative difference in the appointment. To equate the two would be to treat two unequals as equal which would violate the equality clause. But if the appointment is made after considering the claims of all eligible candidates and the appointee continues in the post uninterruptedly till the regularization of his service in accordance with the rules made for regular substantive appointments, there is no reason to exclude the officiating service for purpose of seniority. Same will be the position if the initial appointment itself is made in accordance with the rules applicable to substantive appointments as in the present case. To hold otherwise will be discriminatory and arbitrary…..
…..
47. To sum up, we hold that
(A) Once an incumbent is appointed to a post according to a rule, his seniority has to counted from the date of appointment and not according to date of his confirmation. The corollary to the above rule is that where the initial appointment is only ad hoc and not according to rules and made as a stop-gap arrangement, the officiation in such post cannot be taken into account considering the seniority.”
(emphasis supplied)
21.The decision in Direct Recruits (supra) stands for the principle that ad hoc service cannot be counted for determining the seniority if the initial appointment has been made as a stop gap arrangement and not according to rules. The reliance placed by the Single Judge in the judgment dated 6 December 1991 on Direct Recruits (supra) to hold that the ad hoc service should be counted for conferring the benefit of seniority in the present case is clearly misplaced. This principle laid down in Direct Recruits (supra) was subsequently followed by this Court in Keshav Chandra Joshi v. Union of India. Recently a two judge Bench of this Court in Rashi Mani Mishra v. State of Uttar Pradesh, of which one of us (Justice DY Chandrachud) was a part, observed that the services rendered by ad hoc employees prior to their regularization cannot be counted for the purpose of seniority while interpreting the Uttar Pradesh Regularization of Ad Hoc Appointment Rules. This Court noted that under the applicable Rules, “substantive appointment” does not include ad hoc appointment and thus seniority which has to be counted from “substantive appointment” would not include ad hoc service. This Court also clarified that the judgment in Direct Recruits (supra) cannot be relied upon to confer the benefit of seniority based on ad hoc service since it clearly states that ad hoc appointments made as stop gap arrangements do not render the ad hoc service eligible for determining seniority. This Court speaking through Justice MR Shah made the following observations:
“36. The sum and substance of the above discussion would be that on a fair reading of the 1979 Rules, extended from time to time; initial appointment orders in the year 1985 and the subsequent order of regularization in the year 1989 of the ad hoc appointees and on a fair reading of the relevant Service Rules, namely Service Rules, 1993 and the Seniority Rules, 1991, our conclusion would be that the services rendered by the ad hoc appointees prior to their regularization as per the 1979 Rules shall not be counted for the purpose of seniority, vis-à-vis, the direct recruits who were appointed prior to 1989 and they are not entitled to seniority from the date of their initial appointment in the year 1985. The resultant effect would be that the subsequent re-determination of the seniority in the year 2016 cannot be sustained which was considering the services rendered by ad hoc appointees prior to 1989, i.e., from the date of their initial appointment in 1985. This cannot be sustained and the same deserves to be quashed and set aside and the seniority list of 2001 counting the services rendered by ad hoc appointees from the date of their regularization in the year 1989 is to be restored.
37. Now so far as the reliance placed upon the decision of this Court in the case of Direct Recruit Class II Engg. Officers’ Assn. (supra), relied upon by the learned Senior Advocate appearing on behalf of the ad hoc appointees is concerned, it is required to be noted that even in the said decision also, it is observed and held that where initial appointment was made only ad hoc as a stop gap arrangement and not according to the rules, the officiation in such post cannot be taken into account for considering the seniority. In the case before this Court, the appointments were made to a post according to rule but as ad hoc and subsequently they were confirmed and to that this Court observed and held that where appointments made in accordance with the rules, seniority is to be counted from the date of such appointment and not from the date of confirmation. In the present case, it is not the case of confirmation of the service of ad hoc appointees in the year 1989. In the year 1989, their services are regularized after following due procedure as required under the 1979 Rules and after their names were recommended by the Selection Committee constituted under the 1979 Rules. As observed hereinabove, the appointments in the year 1989 after their names were recommended by the Selection Committee constituted as per the 1979 Rules can be said to be the “substantive appointments”. Therefore, even on facts also, the decision in the case of Direct Recruit Class II Engg. Officers’ Assn. (supra) shall not be applicable to the facts of the case on hand. At the cost of repetition, it is observed that the decision of this Court in the case of Direct Recruit Class II Engg. Officers’ Assn. (supra) was considered by this Court in the case of Santosh Kumar (supra) when this Court interpreted the very 1979 Rules.”
22.The notification dated 3 May 1977 stated that the ad hoc appointments were made in administrative interest in anticipation of regular appointments and on account of delay that takes place in making regular appointment through the concerned agencies. In this regard, the vacancies were notified to the Employment Exchange or advertisements were issued, as the case maybe, by appointing authorities. The appointments were not made on the recommendation of the Punjab Subordinate Service Selection Board. However, subsequently a policy decision was made to regularize the ad hoc appointees since their ouster after a considerable period of service would have entailed hardship. Thus, the initial appointment was supposed to be a stop gap arrangement, besides being not in accordance with the rules, and the ad hoc service cannot be counted for the purpose ofseniority.”
(C) B.S. Vadera v. Union of India, [(1968) 3 SCR 575 : AIR 1969 SC
118 : (1970) 1 LLJ 499]:
“9.Similarly, under para 16 of the Scheme, permanent Upper Division Clerks, with three years’ service in the grade, or in a higher grade, were eligible for promotion, as Assistants. But, here again, no permanent Upper Division Clerks were available, at that time. As certain vacancies existed, in the posts of Assistants, and required to be filled up, as a purely short-term measure, it was decided, by the 2nd respondent, that some of the posts of Assistants, may be temporarily filled up, by promotion from Upper Division Clerks. In view of this decision, the petitioners were promoted, as Assistants, on an ad hoc basis with effect from February 3, 1958, under Annexure 5, dated February 1, 1958. That order clearly shows that the petitioners, including others, who were officiating as Upper Division Clerks, were promoted to officiate, as Assistants, on a purely short-term arrangement. It was further stated, in para 5, of this Annexure, that the promotion is a purely short-term arrangement till qualified Assistants become available, and that the promotion, under that order, will not confer, on the promotees, any claim for retention, as Assistants, as a long-term measure.
15.We have referred to the relevant orders, promoting these two, petitioners, in the first instance, as Upper Division Clerks and, later, as Assistants. The order promoting the petitioners, as Assistants, Annexure 5, dated February 1, 1958, has been referred to, already, and that order clearly shows that the promotion was only a short-term, temporary arrangement, on an officiating basis, and that no claim could be based upon that promotion. No doubt, the order, Annexure 3, dated February 1, 1957, promoting the petitioners, as Upper-Division Clerks, may, on a superficial reading of that order, give the impression that the promotion, is on a permanent basis, and from which further promotion is to be made, to the Grade of Assistants, but, in view of what is stated, on behalf of the Railway Board, the promotion, under Annexure 3, is again, a temporary promotion, because the Scheme, Annexure 4, was to come into force, within a very short time, and that the promotions were made, only on a provisional basis. The regular promotions, or appointments, to Upper Division Grade, which is styled as Grade 1, were to be made, as envisaged under the Scheme, Annexure 4, dated February 5, 1957. Both the petitioners have, categorically, averred in their petitions, that Annexure 4, as modified by Annexure 7, has retrospective effect, from December 1, 1954.”
11.The learned Additional Advocate General appearing for the state has painstakingly contended by placing relying upon the judgements referred to in paragraph no.5 of this order, that the respondent/writ petitioner had not completed the test and the probation, at the relevant point of time and hence, her name was not rightly included. This court, upon perusal of all the judgements, is of the view that the same are not applicable to the facts of this case as in all those judgments, the period of probation was extended and the candidates had either cleared the exam either during or after the extended period of probation and it is under those circumstances, the Hon’ble Apex Court held that it is only after completion of probation, the candidate can become a member of service and his seniority was directed to be fixed from the date of passing. However, in the case on our hand, the respondent/writ petitioner has cleared the test during the original period of probation itself and only a temporary list was prepared in the 2011. The final list was prepared only in the next year, by which time the petitioner had qualified. If the stand of the State is accepted, the period of probation would become redundant and the passing of the test alone becomes relevant, which is not the intention of the Government which will be evident from Rules 26 to 28 of the Tamil Nadu State and Subordinate Service Rules. A conjoint reading of the provisions would also indicate that once the candidate acquires the necessary qualification in time, he has to be placed as per his/her original seniority. At this juncture, it will be useful to refer to the judgment of the Apex Court in Ashok Ram Parhad & others Vs State of Maharashtra and others
[2023 LiveLaw SC 196], wherein it was held as follows:
“25. In service jurisprudence, the service rules are liable to prevail. There can be Government resolutions being in consonance with or expounding the rules, but not in conflict with the same. On having set forth this general proposition, we now examine the scenario of the Rules as prevalent. If we turn to the statutory Rules framed under Article 309 of the Constitution, i.e., the 1984 Rules, Rule 2 refers to the appointment to the post of the DFO and the same to be made by promotionfrom amongst officers of the Maharashtra Forest Service and also by appointment directly. TheProviso to Rule 2of the 1984 Rules is unambiguous and quite clear, i.e., the period spent on training at Government Forest Colleges and other period of probation including extended period of probation, if any, “shall not be counted towards the requisite period of service.” Thus, what is envisaged is that the appointment is different from the recruitment process, which starts with the commencement of training. There can be possibilities of a candidate not completing the training satisfactorily, thereby resulting in the candidate’s removal on probation. Such probation period can also be extended to see whether a candidate improves in performance. (Hence, even if the Government Resolution dated 25.01.1990 upgraded the post of ACF from Class II to Class I, the Proviso to Rule 2 of the 1984 Rules will continue to hold valid in determining the period of service.)
26. In the aforesaid context if we turn to the 1998 Rules, more specifically Rule 3(b), the stipulation is that in case of a nomination, the same is based on the result of the competitive examination held by the Commission in accordance with the Rules and the candidate is required to have “successfully completed the training course.” Rule 6 provides for probation for a period of three years including two years of ACF training course and one year field training, as decided by the Principal Chief Conservator of Forests. Thus, even reading of these extant Rules makes the process for such direct recruitments quite clear. The Entrance and Training Rules (Revised) for the State Forest Service Officers, 2004 (hereinafter referred to as the “2004 Rules”) are comprehensive in character and set forth how the recruitment process will take place.
27. We do believe that on behalf of the appellants there is overemphasis on the expression “person appointed to the post by nomination” under Rule 6 of the 1998 Rules, without appreciating the context in which such expression has been used. In contending that the interpretation given by the High Court would amount to making the opening part of Rule 6 otiose, what is lost sight of is that were the appellants’ plea to be accepted, it would amount to making the Proviso to Rule 2 of the 1984 Rules otiose. The Government resolutions issued by the Administrative Department cannot have the status of a statutory rule although such resolutions may have their own effect.
28. It appears to us that the High Court’s view is the correct view. The resolutions have been passed in the context that the person who successfully completes the training effectively gets the monetary compensation for his training period and is not deprived of the same. This cannot amount to giving seniority from the date of initial recruitment process to determine inter se seniority, when the Proviso to Rule 2 of the 1984 Rules makes the date of appointment for direct recruits clear. This is also in the background that while the direct appointees have no experience in the field having been freshly recruited, the promotees have been doing the task.
29. We fail to appreciate how the judgment in Prafulla Kumar Swain case can be distinguished in this behalf merely by reason of the regulation therein containing the expression “only”. It is not necessary to refer to factual scenarios of different judgments and different rules or general definition of what would amount to be on “duty”, when the rule in question is quite clear. We say so even in the context ofthe judgment in R.S. Ajara & Ors.9 case as in any service, whether on the issue of appointmentor promotion, it iswhat the rule says, which will matter. One cannot derive general principles to decide such issues. We do appreciate that there can be scenarios where the rule specifically states to the contra. But, in the present case, the very factum of Proviso to Rule 2 of the 1984 Rules being inserted in the rule has to be assigned a meaning, as otherwise, it would imply that the Proviso has become otiose. It cannot be said that the Proviso is not to be read in the context of the aspect of promotion.
30. We also find that Rules 3B and 6 of the 1988 Rules also leave no ambiguity in this behalf and in fact read in consonance and the period of probation has to be necessarily excluded from period of service. As already stated, the grant of monetary benefit is a different aspect.
31. On having come to the conclusion that the Government resolutions cannot override statutory rules, and the resolutions neither speaking about promotion to the post of DFO nor about seniority conclusively, the Proviso would operate with full force.”
12.In the case on hand, not only the respondent/writ petitioner has cleared the test in time, she was also senior to the third appellant as per the seniority applicable on the date of original appointment. The fact that a junior has cleared the test before her, cannot alter the original seniority and be placed before her in the temporary list and claim seniority in the permanent list prepared next year before which the writ petitioner, the original senior, had qualified. In this regard, it is relevant to extract Rules 35(a) and 35(aa) of the Tamil Nadu State and
Subordinate Service Rules, which support her case, as follows:
“Rule 35 (a). The seniority of a person in a service, class or category or grade shall unless he has been reduced to a lower rank as a punishment be determined by the rank obtained by him in the list of approved candidates drawn up by the Tamil Nadu Public Service Commission or other Appointing Authority, as the case may be, subject to the rule of reservation where it applies. The date of commencement of his probation shall be the date on which he joins duty irrespective of his seniority.
(aa) The seniority of a person in a service, class, category or grade shall, where the normal method of recruitment to that service, class, category or grade is by more than one method of recruitment, unless the individual has been reduced to a lower rank as a punishment, be determined with reference to the date on which he is appointedto the services, class, category or grade;
Provided that where thejunior appointedby a particular method or recruitment happens to be appointed to a service, class, category or grade, earlier than the senior appointed by the same method of recruitment, the senior shall be deemed to have been appointed to the service, class, category or grade on the same day on which the junior was so appointed:
Provided further that the benefit of the above proviso shall be available to the senior only for the purpose of fixing inter-se-seniority:
Provided also that where persons appointed by more than one method of recruitment are appointed or deemed to have been appointed to the service, class, category or grade on the same day, their inter-se-seniority shall be decided with reference to their age.”
Thus, it is evident from the above provisions that when the junior is appointed to a service, class, category or grade, earlier than a senior, then, the senior shall be deemed to have been appointed to that service, class, category or grade on the same day on which the junior was appointed and such reckoning is only for the purpose of fixing inter se-seniority. Further, a conjoint reading of the above rules and the departmental rules regarding probation and promotion would reveal that the original seniority at the time of appointment cannot be changed; that a person who has successfully completed the probation in time is entitled to be included in the list, which is to be prepared subject to availability of vacancy; and while reckoning the list of candidates fit for promotion, the possible candidates who would be fit in the next twelve months was also directed to be considered for reservation of vacancies. It is thus evident that the respondent/writ petitioner, who has successfully completed the test within the original period of probation is entitled to claim the original seniority and is entitled to be promoted on par with her junior. It is pertinent to mention here that the list for 2011 admittedly is only temporary and that, by the time the permanent list was prepared in 2012, the respondent/writ petitioner has cleared the tests and completed the probation in time. That apart, it is not the case of the appellants that the respondent/writ petitioner has suffered some disqualification preventing her to be considered for promotion. Therefore, we do not find any error in the order of the learned Judge on this aspect.
13.Insofar as the laches is concerned, it is settled law that when there is considerable delay on the part of the aggrieved party to approach the court and when such delay has created a vested and indefeasible right in favour of another person by lapse of time, the discretion under Article 226 of the Constitution, ought not to be entertained. It is not in dispute that the respondent/writ petitioner has been submitting various representations and communications demanding revision of seniority. However, it is only in 2019, the request has been rejected and immediately the writ petition has been filed. It is also beyond any doubt that the respondent/writ petitioner was originally placed above the 3rd appellant on the date of appointment and when the permanent list was prepared in 2012, the respondent/ writ petitioner was fully qualified. In this case, we have already held that the temporary promotion will not confer any right and therefore, no vested right can accrue to the 3rd appellant. The respondent/writ petitioner has been continuously agitating her cause with the official respondents for refixation of seniority, which ultimately culminated into the impugned order, that was subject matter of the writ petition. Therefore, in the mind of this court, in the facts and circumstances of the case, the claim of the respondent / writ petitioner is not hit by laches. It is also relevant to point out at this juncture that the plea of laches was not taken before the Learned Judge and has been raised only in the appeal. In view of the findings rendered above, we are not inclined to entertain this plea at this stage.
14.In fine, the writ appeal deserves to be dismissed and is accordingly, dismissed. No costs. Connected miscellaneous petition is closed.
[R.M.D, J.] [M.S.Q, J.] 06.06.2023
r n s
Speaking Order / Non-speaking order
Internet : Yes.
Index : Yes /No
To
1.The Secretary,
Commercial Taxes and Registration Department, The Secretariat, Fort St. George, Chennai – 600 009.
2.The Commissioner of Commercial Taxes, Ezhilagam, Chepauk, Chennai – 5.
R. MAHADEVAN, J. and MOHAMMED SHAFFIQ, J.
r n s
W.A.No.1587 of 2022 &
C.M.P.No.10537 of 2022

06.06.2023

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