Madras High Court
B.Radhakrishnan vs The State Of Tamilnadu on 28 November, 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.11.2023
CORAM
THE HONOURABLE MS.JUSTICE R.N.MANJULA
W.P.Nos.11687 & 11701 of 2021
and W.M.P.Nos.9797, 9800, 9808, 9811 of 2023 & 12442 to 12445,
12458 to 12460 of 2021
In W.P.No.11687 of 2021
1.B.Radhakrishnan
2.A.Mahendiran
3.T.Parameswari
4.A.Parimalam
5.P.Josephine Stella Sagaya Mary
6.D.Pushpa
7.M.Golden Sheela
8.D.Shanthi
9.S.Geetha
10.K.Vadivambal
11.V.Eswari
12.A.Bharathi
13.R.Vithyalakshmi
14.C.Rajalakshmi
15.A.Arunavathi ... Petitioners
Vs.
1.The State of Tamilnadu
Rep by the Secretary to Government,
Commercial Tax and Registration Department,
Fort St. George, Chennai 600 009.
Page No.1 of 17
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2.The Secretary to Government,
Peronnel and Administrative Reforms Department,
Fort St. George, Chennai 600 009.
3.The Principal Secretary / Commissioner for Commercial Taxes,
Office of the Commissioner for Commercial Tax,
Ezhilagam, Chepauk, Chennai 600 005.
4.M.Saravanan
5.S.Rajasekaran
6.B.Sathis
7.D.Saravana Babu
8.R.Ranjeevi
9.M.Sumalatha
10.R.Karuppasamy
11.D.Ramya
12.N.Agila
13.K.Ramesh
14.P.Loganayagi
15.V.Arulmozhi
16.K.Kirubagaran
17.K.Durga Devi
18.R.Rekha
19.G.Divya
20.R.Pradeebha
21.T.Kuppuswamy
22.B.Muniraj
23.V.S.Boobalan
24.K.Ganeshkumar
25.C.Gowthami
26.R.Parvathi
27.T.Aadhisiva
28.K.Jeyanthimathi
29.S.Veeramanikandan
... Respondents
Page No.2 of 17
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(Respondents 4 to 29 have been impleaded vide
order dated 28.11.2023, in W.M.P.No.31572 of 2023)
Prayer: Writ Petition is filed under Article 226 of the Constitution of
India, to issue a Writ of Certiorari, to call for the records of the third
respondent in his proceedings bearing No.H2/32534/2015 Circular
No.9/2021 dated 28.04.2021 and quash the same.
In W.P.No.11701 of 2021
1.S.Lavagusa
2.M.Indhumathi
3.S.Selvakumari
4.B.Chidambaram
5.M.Ganapathy
6.K.Ramachandran
7.E.Kumaresan
8.M.Tamilselvi .. Petitioners
Vs.
1.The Commissioner of Commercial Taxes,
Chepauk, Chennai 5.
2.The Additional Commissioner (Admn)
Office of the Principal Secretary /Commissioner of
Commercial Taxes, Chepauk,
Chennai 5.
3.The Joint Commissioner (ST)
Commercial Taxes Department,
Tirunelveli Division.
Page No.3 of 17
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4.The Joint Commissioner (ST)
Commercial Taxes Department,
Tiruchi Division.
5.The Joint Commissioner (ST)
Commercial Taxes Department,
Vellore Division.
6.M.Saravanan
7.S.Veeramanikandan ... Respondents
(Respondents 6 & 7 are impleaded vide
order dated 28.11.2023 in WMP.No.31979 of 2023)
Prayer: Writ Petition is filed under Article 226 of the Constitution of
India, to issue a Writ of Certiorari, to call for the records of the second
respondent in its Circular H2/32534/2015 dated 28.04.2021 and quash
the same.
For Petitioners
in W.P.No.11687 of 2021 : Mr.K.S.Viswanathan, Senior Counsel
for Mr.G.Ilamurugu
For Petitioners
in W.P.No.11701 of 2021 : Mr.V.Vijayashankar
For Official
Respondents in both W.Ps. : Mr.Haja Nazirudeen,
Addl. Advocate General I
Assisted by Mr.M.Venkateswaran,
Special Government Pleader (T)
For Private
Respondents in both W.Ps : Mr.M.Purushothaman
Page No.4 of 17
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COMMON ORDER
These Writ Petitions have been filed to call for the records of the
impugned order in proceedings bearing No.H2/32534/2015 Circular
No.9/2021 dated 28.04.2021 and quash the same.
2. Heard Mr.K.S.Viswanathan, learned Senior Counsel for the
petitioner in W.P.No.11687 of 2021, Mr.V.Vijayashankar, learned counsel
for the petitioner in W.P.No.11701 of 2021, Mr.Haja Nazirudeen, learned
Additional Advocate General for the official respondents and
Mr.M.Purushothaman, learned counsel for the private respondents in
both Writ Petitions.
3. The dispute is between two categories of persons who have been
initially appointed as Junior Assistant and then promoted to the post of
Assistant and those persons who have been initially appointed as
Stenotypist Grade – III and later promoted to the post of Assistant. So far
as the recruitment to the post of Assistant is concerned, it is done through
three methods:
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1. by promotion from Junior Assistant
2. by direct recruitment as Assistant
3. recruitment by transfer
4. So the core issue is that those individuals who have been
working as Stenotypist Grade – III and who have got promoted as
Assistants through recruitment by transfer claim that their past services
in the category of Stenotypist Grade – III should also be included for
computing the qualifying service for the next promotion to the post of
Deputy Commercial Tax Officer (DCTO). Those individuals who have
been promoted from Junior Assistants to Assistants and the individuals
who have been directly recruited as Assistants would claim that the
Stenotypist Grade – III would fall under technical category and hence
their past service cannot be considered as ministerial service and hence
their qualifying service for the purpose of next promotion should be
counted from the post of Assistant and not from their original post of
Stenotypist Grade – III.
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5. According to the learned counsel for the private respondents, the
issue has already been decided in the judgment of the learned Division
Bench of the Madurai Bench of this Court in W.A.Nos.339 to 342 of
2018 dated 17.10.2019.
6. The learned Additional Advocate General for the respondents
submitted that similar such Stenotypist Grade – III who were working in
Rural Development and Panchayat Raj Department have filed
W.P.Nos.21358 to 21361 of 2016, by making the same claim that as per
Rule 35(b) of the then Tamil Nadu State Subordinate Service Rules, the
transfer of a person from one class or category of service to another
class or category carrying the same pay or scale of pay shall not be
treated as first appointment to the latter for the purpose of seniority.
Hence it is claimed that the seniority of the Stenotypist Grade – III who
have been transferred and recruited should be determined with reference
to the rank in the class or category from which they got transferred.
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7. To put it in other words, the Stenotypist Grade – III, who are the
petitioners therein have claimed that for the purpose of seniority, their
service rendered by them in the cadre of Stenotypist Grade – III should
also be included and hence, they should be placed above the private
respondents in the seniority list in that Writ Petition.
8. The prayer of the Stenotypist Grade – III were granted and the
same was challenged in the Writ Appeal in W.A.Nos.339 to 342 of 2018
dated 17.10.2019. The attention of this Court was drawn to the following
paragraphs in the order passed in W.A.Nos.339 to 342 of 2018:
"15.We are to consider as to what would mean by
appointment by transfer. This aspect has been lucidly
explained in the decision of the Hon'ble Apex Court in
Palure Bhaskar Rao v. P.Ramaseshaiah [(2017) 5 SCC
783], wherein it has been held that Transfer and
recruitment by transfer are entirely two different
concepts. It was further pointed out that if it is a transfer
simpliciter it conveys a different meaning and if it is a
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recruitment by transfer it is a mode of
selection/recruitment to the service. It would be
beneficial to refer to the following paragraphs in the said
judgment:
“14.Transfer and recruitment by transfer
are entirely two different concepts. No doubt
transfer can be from one category to
another category or within the class if the
rule permits interchangeability of the
categories within a class. Any other transfer
both intra-category and inter-category are
in fact, under law is a selection and
appointment by way of a transfer from one
category to another or from one class to
another class or from one service to another.
If it is a transfer simpliciter it conveys a
different meaning and if it is a recruitment
by transfer, as we have clarified above
conveys a different concept altogether. The
latter is a mode of selection/recruitment to a
service.
15.Transfer in relation to service
simply means a change of a place of
employment within an organization. Such
transfer being to a similar post in the same
cadre and therefore obviously such a
transfer does not result in the termination of
his lien in the parent cadre but recruitment
by transfer is a different service concept
altogether. It is a method of recruitment to a
service, in the instant case to a different
category in the same service initially and
thereafter to a different service altogether.
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Once an employee undergoes a transfer by
way of a recruitment to a different cadre or
to a different service, the employee loses his
lien in the parent cadre/service. In that
process, there is an induction to a new cadre
and sometimes with a different type of duty.
Such induction has distinct consequence on
the career of the employee different from
what would have been the normal course
had he continued in the parent service. Thus
the recruitment by transfer terminates the
lien of an employee in the parent
cadre/service whereas transfer simpliciter to
a similar post in the same cadre results only
in change of place of employment and
therefore there is no termination of lien, (see
V. Jagannadha Rao v. State of A.P. [(2001)
10 SCC 401] and B. Thirumal v. Ananda
Sivakumar [(2014) 16 SCC 593]).”
16. Rule 9 of the Rules clearly says it is an
appointment by transfer, in other words, recruitment by
transfer, which is one of the mode of appointment. The
other mode would be by promotion from Junior Assistant.
One more aspect, which makes things clearer is
stipulation of 5 years of service as Steno-Typist Grade –
III. This is the qualifying service for Steno-Typist Grade
III to opt for appointment by transfer to the post of
Assistant. The parity in the scale of pay between the
Steno-Typist Grade III and Assistant is not a matter to be
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the basis for determining the seniority in the light of the
specific Rule which provides for a minimum qualifying
service, which was initially 8 years and subsequently
reduced to 5 years. Therefore, the contention of the first
respondent in these Writ Appeals that the transfer of the
respondents from the post of Steno-Typist Grade III to
Assistant is transfer simpliciter is incorrect and not
tenable.
.....
21.Similarly, Rule 35(b) will also have no
application as it deals with transfer of person from one
class or category to other class or category carrying the
same scale of pay. This Rule would not have application
since 5 years service as Steno-Typist is the minimum
qualification for appointment as Assistant. Therefore, the
first respondent cannot be heard to say that the
qualifying service also should be reckoned for the
purpose of determining their seniority in the post of
Assistant."
9. The Rule 35(b) of the Tamil Nadu State and Subordinate Service
Rules has evolved into Tamil Nadu Government Servants (Conditions of
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Service) Act, 2016 ( Tamil Nadu Act 14 of 2016). Section 40(3) of the
new Act is analogous to the Rule 35(b) of the old Act, which reads as
under:
"40(3). The transfer of a person from one class
or category of a service to another class or category
carrying the same levels of pay in the pay matrix shall
not be treated as first appointment to the latter for the
purpose of seniority and the seniority of a person so
transferred shall be determined with reference to the
rank in the class or category from which he was
transferred; where any difficulty or doubt arises in
applying this provision, seniority shall be determined
by the appointing authority."
10. Since the petitioners have been recruited through transfer from
the category of Stenotypist Grade – III to the category of Assistant, their
appointment in the category of Assistant cannot be considered as a mere
transfer, but recruitment by transfer. Since the Stenotypist Grade – III
belongs to technical category and the post of Assistant belonged to
ministerial category, shifting from technical category to ministerial
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category and posting them in the cadre of Assistant is considered as
recruitment by transfer and thus, distinction is made by the learned
Division Bench in the above judgment.
11. It is further clarified that even for the purpose of appointment
by transfer, the Stenotypist Grade – III ought to have completed five
years of service in their original category. Since five years of qualifying
service is fundamental or basis for achieving the post of Assistant, the
period of qualifying service for the next promotion would naturally flow
from the day when they assume charge to the post of Assistant and not
from the day when they joined in the post of Stenotypist - Grade III.
However, it is made clear in the counter filed by the respondents that the
apprehension of the petitioners that they would be de-promoted after 2
years from the date of promotion is only a figament of their imagination
and no such steps have been taken so far.
12. It is further assured that even in the event of considering such
step, no action will be taken without putting the petitioners on notice by
following the principals of natural justice. So the petitioners need not
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fret upon these aspects for now.
13. With the above observations, these Writ Petitions are disposed.
No costs. Consequently, connected miscellaneous petitions are closed.
28.11.2023
Index : Yes
Internet : Yes/No
gsk
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To
1.The Secretary to Government,
Commercial Tax and Registration Department,
Fort St. George, Chennai 600 009.
2.The Secretary to Government,
Peronnel and Administrative Reforms Department,
Fort St. George,
Chennai 600 009.
3.The Principal Secretary / Commissioner for Commercial Taxes,
Office of the Commissioner for Commercial Tax,
Ezhilagam, Chepauk,
Chennai 600 005.
4.The Commissioner of Commercial Taxes,
Chepauk, Chennai 5.
5.The Additional Commissioner (Admn)
Office of the Principal Secretary /Commissioner of
Commercial Taxes, Chepauk,
Chennai 5.
6.The Joint Commissioner (ST)
Commercial Taxes Department,
Tirunelveli Division.
7.The Joint Commissioner (ST)
Commercial Taxes Department,
Tiruchi Division.
8.The Joint Commissioner (ST)
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Commercial Taxes Department,
Vellore Division.
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R.N.MANJULA, J.
gsk
W.P.Nos.11687 & 11701 of 2021
and W.M.P.Nos.9797, 9800, 9808, 9811 of 2023 & 12442 to 12445,
12458 to 12460 of 2021
28.11.2023
https://www.mhc.tn.gov.in/judis
