Madras High Court
N.Rajasekar vs The Secretary To The Government on 8 April, 2025
Author: V.Bhavani Subbaroyan
Bench: V.Bhavani Subbaroyan
Writ Petition No.385 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.04.2025
CORAM
THE HONOURABLE MRS JUSTICE V.BHAVANI SUBBAROYAN
WP NO. 385 of 2024
&
WMP Nos. 432 , 1956 & 1955 OF 2024
N.Rajasekar
Petitioner(s)
Vs
1.The Secretary to the Government,
Commercial Taxes and Registration Department,
St.George Fort, Chennai - 600 009
2.The Commissioner Of Commercial Taxes,
Ezhilagam, Chepauk, Chennai - 600 009.
3. M.Maheswari,
Deputy Commissiner(ST), GST Appeal, Erode,
O/o. Commissioner Of Commercial Taxes,
Ezilagam, Chepauk, Chennai - 600 005.
Respondent(s)
PRAYER : Writ Petition filed under Article 226 of the Constitution of
India, praying to issue a Writ of Certiorarified Mandamus, to call for the
records of the first respondent vide G.O.(Ms) No.142(Commercial Taxes &
Registration(E2) Department, dated 27.12.2023 and quash the same and
direct the respondents 1 & 2 to promote the petitioner in accordance with his
seniority as per G.O.Ms.No.72(Commercial Taxes & Registration(E1)
1/34
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Writ Petition No.385 of 2024
Department, dated 07.07.2023.
For Petitioner(s):
M/s.T.Mohan, Sr. Advocate for Mr.Adithya
Reddy
For Respondent(s):
Mr.K.Vasantha Mala, Govt. Advocate for RR1 &2
ORDER
This Writ Petition has been filed praying to issue a Writ of
Certiorarified Mandamus, to call for the records of the first respondent vide
G.O.(Ms) No.142 (Commercial Taxes & Registration(E2) Department, dated
27.12.2023 and quash the same and consequently, direct the respondents 1 &
2 to promote the petitioner in accordance with his seniority as per
G.O.Ms.No.72 (Commercial Taxes & Registration(E1) Department, dated
07.07.2023.
2. The petitioner was originally recruited as Assistant Commissioner
by Direct Recruitment in the year 2009 and currently working as Deputy
Commissioner in Chennai - II Intelligence Division. The petitioner’s
promotion to Deputy Commissioner was delayed due to a pending
examination as on the crucial date for that year i.e., 01.01.2013. Then the
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petitioner completed his examination on 18.02.2013 and his probation was
declared by the 2nd respondent vide proceedings dated 21.08.2013 with
effect from 18.02.2013 which was before drawing of panel. The petitioner
completed the examination within the time limit for completion of probation
as required under Rule 6 of the Special Rules (excluding leave period as
allowed under Proviso to Section 32). Thereafter, the petitioner was
promoted in the year 2020 vide G.O(Ms).No.86 dated 18.05.2020.
Subsequently, the seniority of the petitioner has been fixed correctly as
having rank 29 amongst his batch mates by G.O(Ms).No.72 dated
07.07.2023. Pursuant to the Supreme Court order for fixing of seniority, the
Department refixed the seniority on the basis of marks obtained in the
TNPSC. This seniority now sought to be disturbed by the impugned order.
Further, the petitioner gave representation on 20.12.2023 and on 16.08.2023
requesting further promotions to the post of Joint Commissioner in
accordance with the original seniority. Despite several representations given
by the petitioner, he was not considered for promotion to Joint
Commissioner while his six juniors were promoted temporarily, by leaving
out the petitioner. However, the respondent passed impugned order leaving
out petitioner. Hence, this present writ petition.
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3. Per contra, the 2nd respondent denied all the allegations put forth by
the petitioner herein. The respondent claims that the petitioner ought to have
been the prescribed tests before 04.10.2012 by which, the three year period
for completion of probation ends. However, the petitioner passed the
examination in Accountancy-Junior Grade only in the February 2013. As a
consequence, his probation was declared to have been completed
satisfactorily within the extended period of probation on 18.02.2013 which
was the date of sitting for the aforementioned examination. Subsequently, a
panel was drawn on 18.10.2013 and the petitioner was overlooked on
account for his not being eligible for such promotion as on the crucial date
for consideration for inclusion in the panel i.e., 01.01.2013. Then no
promotion panels were drawn for the years from 2014 to 2018 and panel was
drawn in the year 2019. In between, the petitioner was issued with charge
memo under Rule 17(b) of the Tamil Nadu Civil Services (Discipline and
Appeal) Rules on 14.03.2014 and the said disciplinary proceedings were
dropped on 11.10.2019. Thereafter, petitioner's name was considered for
inclusion in the next temporary panel drawn in the year 2020 and he was
promoted as Deputy Commissioner in G.O. (Ms).No.86, Commercial Taxes
and Registration Department, dated 18.05.2020. In the said Government
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order also, it has been recorded in para 8(ii) and (iii) that the promotion is
subject to revision of inter se seniority and also will not bestow any seniority
rights for promotion to the next higher category. Further, the 1st respondent
issued seniority list on all categories of the State Service, namely, Assistant
Commissioner (Commercial Taxes) and Additional Commissioner by
issuance of G.O.(Ms).No.53, Commercial Taxes and Registration
Department, dated 09.02.2024 inviting objections within a period of two
months from the date of issuance of the said order. However, the petitioner
didn’t file objections, but filed the present writ petition prior to publication
of the said provisional lists. The provisional list published and the petitioner
has not been promoted on account of his belated promotion to the feeder
category of Deputy Commissioner much later than his juniors in the even
lower category and such belated promotion was on account of delay in
acquisition of qualification by the petitioner and not on account of any
administrative reasons. Hence, prays to dismiss the present writ petition.
4.Heard the learned Senior counsel for the petitioner and the learned
Government Advocate appearing for the respondents and perused the entire
materials available on record.
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5.The learned counsel for the petitioner contends that the position
assigned to the petitioner is based on selection through Tamilnadu Public
Service Commission cannot be altered as per Section 40 of The Tamil Nadu
Government Servants (Conditions of Service) Act, 2016which reads as
follows:
“40. Fixation of Seniority.
(1) the seniority of a person in a service, class,
category or Cadre shall, unless he has been
reduced to a lower rank as a punishment, be
determined in the order of his placement in the list
prepared by the recruitment agency or appointing
authority, as the case may be, in accordance with
the rule of reservation and the order of rotation
specified in Schedule-V, where it applies. The
date of commencement of his probation shall be
the date on which he joins duty irrespective of his
seniority.
(2) 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 appointed to
the services, class, category or grade:
Provided that where the junior appointed by a
particular method of 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,
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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.”
The above rule position is very clear wherein the seniority assigned by the
Service Commission is to remain intact. There is nothing contrary to the
same in the special rules. The learned Senior counsel for the petitioner
would rely on a judgment dated 23.03.2020 passed by this Court in the case
of “J.Anbu Tamilarasi v. State of Tamil Nadu” reported in dated
23.03.2020, wherein, it has been in para 13 held as follows:
“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
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appreciate as to how she can be denied her due
seniority as assigned to her originally at the time of
her appointment vis-à-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 and 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. Of course there is
an exception given in the Rule or Section, but
however that exception is not the case here. When
an 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
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respondents. The fact that the petitioner
successfully cleared the examination within the
stipulated period is also admitted by the official
respondent. In the said circumstances, lowering the
seniority of the petitioner vis-à-vis third respondent
and others in the 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 and 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 of her original ranking
assigned to her at the time of her appointment as
DCTO.”
The above order has been conferred by a Division Bench of this Court in
W.A.No.1587 of 2022 dated 06.06.2023. In para 12, it has been held as
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under:
“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
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individual has been reduced to a lower rank
as a punishment, be determined with
reference to the date on which he is
appointed to the services, class, category or
grade;
Provided that where the junior appointed by
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
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and promotion would reveal that the original
seniority at the time of appointment cannot be
changed; that a person who hassuccessfully
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.”
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5.With these contentions, the learned Senior counsel prays to allow
the Writ Petition.
6.On the other hand, the learned Government Pleader contends that
no right to seniority was conferred to persons promoted in this panel and this
fact is also recorded in para 5 of the relevant G.O. (Ms).No.132, Commercial
Taxes and Registration Department, dated 18.10.2013. Further, he would
submit that the determination of seniority of the petitioner in the Deputy
Commissioner category by inclusion in the 2019 promotion panel is in
consonance with Special Rule 4 (c) whereby the petitioner is ineligible for
promotion in as much as he was not an approved probationer as on
01.01.2013 which is the crucial date for the panel year.
7.The learned Government Advocate relied on some judgments to
substantiate his contentions. In the case of “R.Prabha Devi and others Vs.
Government of India and others” reported in AIR 1988 SC 902, wherein,
in para 15, it has been held as under:
“15. The rule-making authority is competent to
frame rules laying down eligibility condition for
promotion to a higher post. When such an eligibility
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condition has been laid down by service rules, it
cannot be said that a direct recruit who is senior to
the promotees is not required to comply with the
eligibility condition and he is entitled to be
considered for promotion to the higher post merely
on the basis of his seniority.... When qualifications
for appointment to a post in a particular cadre are
prescribed, the same have to be satisfied before a
person can be considered for appointment. Seniority
in a particular cadre does not entitle a public servant
for promotion to a higher post unless he fulfils the
eligibility condition prescribed by the relevant
service rules. A person must be eligible for
promotion having regard to the qualifications
prescribed for the post before he can be considered
for promotion. Seniority will be relevant only
amongst persons eligible. Seniority cannot be
substituted for eligibility nor can it override it in the
matter of promotion to the next higher post.”
8.It is also contended by the learned Government Advocate that the
seniority in the promoted post is based on the date of joining in the promoted
post and not on the basis of seniority prevailing in the feeder category post.
The seniority in the promoted post is determined at the time of making the
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promotion itself. It may be noted that under section 41(2) [relating to
'Promotion'] of the Tamil Nadu Government Servants (Conditions of
Service) Act, 2016-
“Promotions in a service or class to a selection
category or to a selection grade shall be made on
grounds of merit and ability, seniority, being
considered only where merit and ability are
approximately equal. The inter-se-seniority among
the persons found SUITABLE for such promotion
shall be with reference to the inter-se-seniority of
such persons in the lower post.”
9.Further contention of the respondents is that the petitioners name in
G.O.(Ms) No.72, Commercial Taxes and Registration Department dated
07.07.2023 pertains to rearrangement of seniority amongst Assistant
Commissioners directly recruited through the Tamilnadu Public Service
Commission based on the marks obtained in the recruitment exam. This
seniority in the Assistant Commissioner category has not been disturbed. It
is rather the case that the petitioner had failed to qualify for further
promotion as on the crucial date as required under Special Rule 4(c) and
therefore his juniors had been promoted and even in the regular seniority
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lists now published, the very same juniors of the same direct recruit batch
are included in the Deputy Commissioner category for the year 2013
whereas the petitioner, who was qualified for inclusion only for the next
promotion panel, has been included in the next promotion panel which was
drawn in the year 2019. The non-promotion of the petitioner in the 2013
panel is solely on account of the disqualification attracted under Special
Rule 4(c) which was also due to the fault on the part of the petitioner in
failing to pass the prescribed exam and thus complete the probation ahead of
the crucial date and not due to any administrative reasons or delays. With
these contentions, the learned Government Pleader prays to dismiss the case.
As per Section 40 of the Tamil Nadu Government Servants (Conditions of
Service) Act, 2016, which reads as under:
“40(1) the seniority of a person in a service, class,
category or Carde shall, unless he has been reduced
to a lower rank as a punishment, be determined in
the order of his placement in the list prepared by the
recruitment agency or appointing authority, as the
case may be, in accordance with the rule of
reservation and the order of rotation specified in
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Schedule-V, where it applies. The date of
commencement of his probation shall be the date on
which he joins duty irrespective of his seniority.
(2) 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 appointed to the services, class,
category or grade:
Provided that where the junior appointed by a
particular method of 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
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or grade on the same day, their inter-se-seniority
shall be decided with reference to their age.”
11.The learned counsel for the petitioner by relying on the above said
Rule. would submit that the petitioner’s seniority should fixed from the date
of appointment to the service and no the date of completion of exam before
the crucial date for drawing panel.
12.Petitioner’s promotion to deputy commissioner was delayed due to
a pending exam, but he qualified within the extended period as per the rule 5
of Tamil Nadu Commercial Taxes Service Rules which is as follows:
“Rule 5 (b) (i) Notwithstanding anything contained
in the General Rules, at the end of the prescribed
period of probation of an Assistant Commissioner
or at the end of the period, if any, upto which his
probation has been extended under sub-rule (ii) in
the category of Assistant Commissioners- If the
Commissioner of Commercial Taxes considers that
a probationer in the category of Assistant
Commissioner is suitable for full membership, it
shall as soon as possible issue an order declaring the
probationer to have satisfactorily completed his
probation on the date of the expiry of the prescribed
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or extended period of probation, as the case may
be.”
Seniority fixed as determined by the Tamil Nadu Public Service
Commission, cannot be altered.
13.Respondents claim that petitioner was not eligible for promotion
toJoint Commissioner as per Special Rule 4(c) as he was not an approved
probationer on the crucial date i.e.,01.01.2013 which was the crucial date for
the panel year 2013. The said Rule is extracted under :
“RULE 4 (C) No person shall be eligible for
promotion as Deputy Commissioners of
Commercial Taxes unles he is an approved
probationer in the category of Assistant
Commissioner on the 1 st January of the year for
which the list for such promotion is drawn.”
Further, the petitioner did not challenge the previous government order in
G.O. (Ms).No.132, Commercial Taxes and Registration Department, dated
18.10.2013 promoting his juniors to Deputy Commissioner.
14.The Hon'ble Apex Court in “R.Venkata Ramudu and Another v.
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State of Andra Pradesh and others”, relied on by the learned Senior
counsel for the petitioner, has held as under:
“43. The Special Rules are silent with regard to the
principles governing seniority, Rule 33 of the
General Rules deals with it. Rule 33, insofar as it is
relevant, reads as under:
“33. Seniority. (a) The seniority of a person
in a service, class, category or grade, shall
unless he has been reduced to a lower rank
as a punishment, be determined by the date
of his first appointment to such service,
class, category or grade.”
(Emphasis supplied)
It can be seen from the above, the seniority of a
person shall be determined by the date of his first
appointment to such service. The date of
appointment is different from the date of
commencement of probation. Both under Rule 16(2)
of the General Rules and Rule 6(2) of the Special
Rules, the commencement of probation is from the
date on which a person appointed joins the duty.
Therefore, appointment precedes the
commencement of probation. Rule 33 does not
make any reference to either the commencement or
declaration of probation.
“44. Therefore, the conclusion of the Tribunal
(confirmed by the High Court) that those persons
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who pass the Accounts test within the prescribed
period of probation constitute a different class than
those who pass the Accounts test after securing the
benefit of extended period of probation and such
later lass shall not gain advantage by way of
seniority over the class mentioned earlier is without
any basis in the text of the Rules. If the rule-making
authority desired to make such a distinction it
should have done so expressly. It is a different
matter whether such a classification would stand the
test of Article 14. We do not propose to examine the
same in this case.
“45. In the context of the service such as the one to
which R. Venkata Ramudu belongs, what is more
relevant is the technical qualification of the
employee and the experience gained in utilising
such technical qualification for the service of the
State than the knowledge of Accounts, a subject
which is of incidental significance. Because
knowledge of accounts is relevant only for the
discharge of administrative responsibilities to be
shouldered by the engineers. Their essential duty is
to provide skills of technical knowledge to the State.
That is why the Rules prescribe an experience of 5
years as an Assistant Executive Engineer for being
promoted to the next higher category of Deputy
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Executive Engineer. An Assistant Executive
Engineer even if he passes the Accounts test within
the prescribed period of probation (2 years) will not
be considered for promotion till he completes 5
years of service. Therefore, we are unable to agree
with the logic employed by the Tribunal and
confirmed by the High Court in this regard.
“46. For the abovementioned reasons, the judgment
under appeal cannot be sustained and the same is
accordingly set aside. As a consequence, the OAs
filed by R. Venkata Ramudu and others are required
to be allowed, as prayed for. Ordered accordingly.”
15.The Hon'ble Apex Court in the case of “State of M.P. vs
Ramkinar Gupta and others” (2000) 10 Supreme Court Cases 77, relied
upon by the learned Government Pleader for the respondents, has held as
under in para 14 as under:
“14. The facts of this case are different from the
case of State of M.P. v.Ramkinkar Gupta [CA No.
5380 of 1999 @ SLP (C) No. 17263 of 1998]. In the
present case, the respondent was granted an
extension of one year for completing the probation
and within that extended period he passed the
requisite test. Therefore, his seniority will be fixed
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from the date of passing the departmental
examination and not from the date of joining of
service. Accordingly, this appeal is dismissed with
no order as to costs.”
16.In “Om Prakash Shrivastava versus State of M.P. and another”
reported in (2005) 11 Supreme Court Cases 488, the Hon'ble Apex Court has
held in para 11 as under:
“11. Reiterating the principles in M.P. Chandoria
case it was held in Ramkinkar Gupta case that if a
person does not pass the test, then the appointing
authority is empowered to assign seniority in a
lower level than one which has been assigned by the
Public Service Commission. A person who has
neither been confirmed, nor had a certificate in his
favour in terms of sub-rule (6), nor discharged from
service under sub-rule (4) would fall within the
category of those officers referred to in sub-rule (7)
of Rule 8 of the Rules. In other words, he is to be
deemed to be a temporary government servant with
effect from the date of expiry of probation. The
position is different in case of an officer, who passes
the departmental examination within an extended
period of probation.”
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17.In the case of “Direct Recruit Class Ii Engineering Vs. State Of
Maharashtra And Ors” reported in 1990 AIR 1607, the legal position with
regard to inter se seniority of direct recruits and promotes and while doing
so, inter alia, it was held that once an incumbent is appointed to a post
according to rules, his seniority has to be counted from the date of his
appointment.
18.This writ petition primarily hinges on two pivotal questions:
1. Whether the petitioner cleared the Junior
Accountancy examination within his probation
period as extended by Section 32 of the Tamil
Nadu Government Servants (Conditions of
Service) Act, 2016?
2. Whether the petitioner is entitled to retain his
original seniority as provided for under Section
40 of the Tamil Nadu Government Servants
(Conditions of Service) Act, 2016?
19.With respect to the first issue, it is an admitted fact that the
petitioner did not complete the Junior Accountancy examination within three
years from his date of joining. However, a plain reading of the explanation
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clause in Section 32 of the Tamil Nadu Government Servants (Conditions of
Service) Act, 2016, clearly indicates that any period of leave taken by the
petitioner during the probation period must be excluded from the total
probation period. If such leave is excluded, the petitioner would be deemed
to have completed his probation within the prescribed three-year period. The
relevant portion of Section 32 is extracted below:
32. (1)At the end of the prescribed or extended
period of probation, as the case may be, the
appointing authority shall consider the
probationer's suitability for full membership of the
service, class or category for which he was
selected.
(2)If the appointing authority decides that a
probationer is suitable for such membership, it
shall, as soon as possible, issue an order declaring
the probationer to have satisfactorily completed his
probation. If no such order is issued within six
months from the date on which he is eligible for
such declaration, the probationer shall be deemed
to have satisfactorily completed his probation on
the date of expiry of the prescribed or extended
period of probation. A formal order declaring the
completion of probation shall, however, be issued
by the competent authority. In all cases in which
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serious charges are pending, and therefore,
probation cannot be declared, an order to the effect
that the question of declaration of probation cannot
be considered till the charges are disposed of shall
be issued by the competent authority within six
months from the due date for completion of
probation and the final order on probation shall be
passed as early as possible and in any case within
one month after the disposal of the charges or six
months after the due date for completion of
probation, whichever is later.
Explanation. - For the purpose of calculating the
period of probation of a probationer, complete
calendar months, irrespective of the number of days
in each month, shall first be calculated and then the
odd number of days calculated subsequently.
Period of leave, if any, taken during the period of
probation shall be excluded while calculating the
period of probation.”
20.It is to be seen whether the petitioner falls within the ambit of the
Section 32 of the Tamil Nadu Government Servants (Conditions of Service)
Act, 2016, for which the service of the petitioner has to be looked into. It is
not in dispute that the petitioner's date of appointment and commencement
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of training in the Assistant commissioner category as mentioned in the
counter of the respondents at par 2 is 5/10/2009 and the expected date on
which the petitioner was expected to complete all prescribed tests were on or
before 4/10/2012 and number of leaves permitted is 144 days as seen from
the office note issued on 4/01/2024 Considering the provision and
explanation of Section 32 of the Tamil Nadu Government Servants
(Conditions of Service) Act, 2016, the date on which the petitioner ought to
have completed the examination after exclusion of leave(s) accumulated as
will be 25/02/2013 and the petitioner's actual date on which he completed
the examination is on 18/02/2013. From the factual details, it is evident that
the petitioner, with the benefit of Section 32 of the Tamil Nadu Government
Servants (Conditions of Service) Act, 2016 and the explanation clause, has
completed the relevant examinations within his probation period. Since all
the leave(s) were sanctioned and authorized as seen through the office note
of the superior dated 04.01.2024, the petitioner is entitled to exclude the
leave period as provided in the explanation clause in Section 32.
21.Coming to the second aspect, once a seniority list is fixed, it cannot
be altered unless there is a disciplinary proceeding. Admittedly, the
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petitioner's promotion was delayed solely on the ground that he had not
qualified the examination within the crucial date. However, since the
petitioner successfully cleared the examination within the probation period,
he is entitled to retain his original seniority ranking in the seniority list. The
Division Bench of this Hon'ble Court by its judgement dated 6/6/2023 made
in the case of “State of Tamil Nadu v. J Anbutamilarasi, in W.A. No. 1587
of 2022 has ruled that:
"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 clam 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
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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 appointed to the
services, class, category or grade.
Provided that where the junior appointed by 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,
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category of 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-semonty
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
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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."
22.Further as per Rules 35(a) and 35(aa) of the Tamil Nadu State and
Subordinate Service Rules, which fortify the claim of the petitioner that the
seniority fixed at the time of appointment cannot be altered, unless affected
by punishment Further, Section 40 of the Tamil Nadu Government Servants
(Conditions of Service) Act, 2016, the seniority of a person in a service,
class, category or grade shall, unless he has been reduced to a lower rank as
a punishment, be determined in the order of his placement in the list
prepared by the recruitment agency or appointing authority, as the case may
be. Therefore, the petitioner's original seniority remains unaltered
Consequently, if a junior has been promoted earlier, they must yield in
seniority when the senior subsequently qualifies. That apart, Section 40 of
the Tamil Nadu Government Servants (Conditions of Service) Act, 2016,
provides for deemed promotion taking into effect the date on which junior
was promoted for the purpose of inter se seniority. Moreso, Rule 4(c) relied
by the respondents specifies the eligibility on the date of promotion and not
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deemed promotion applied in lieu of inter se seniority as contemplated in
Section 40 of the Tamil Nadu Government Servants (Conditions of Service)
Act, 2016. Applying J. Anbu Tamilarasi dictum, it is clear that the petitioner
has completed the probation within time period save as provided by the
explanation clause in Section 32 of the Tamil Nadu Government Servants
(Conditions of Service) Act, 2016.
23.Insofar as the charge memo under Section 17(b) of the Tamil Nadu
Civil Services (Discipline and Appeal) Rules is concerned, the same was
admittedly dropped on 11.10.2019. The stand of the respondents that Special
Rule 4(c) of the Special Rules for Tamil Nadu Commercial Taxes Service
mandates that the petitioner was not eligible for promotion in 2013 is
untenable.
24.In the light of the above discussion, this Court holds that the
impugned order of the 1" respondent in GO (MS).No. 142 (Commercial
Taxes & Registration)(E2) Department, dated 27.12.2023 is quashed and
consequently, the respondents 1 and 2 are hereby directed to promote the
petitioner in accordance with his seniority as per GO (MS) No.72
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(commercial Taxes & Registration) (E1) Department, dated 7.7.2023.
25. Accordingly, the Writ Petition Stands allowed. No costs.
08.04.2025
dn
Index : Yes/No
Neutral citation : Yes/No
Speaking/non-speaking order
To
1.The Secretary to the Government,
Commercial Taxes and Registration Department,
St.George Fort, Chennai - 600 009
2.The Commissioner Of Commercial Taxes,
Ezhilagam, Chepauk, Chennai - 600 009.
3. M.Maheswari,
Deputy Commissiner(ST), GST Appeal, Erode,
O/o. Commissioner Of Commercial Taxes,
Ezilagam, Chepauk, Chennai - 600 005.
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V.BHAVANI SUBBAROYAN.J.,
dn
08.04.2025
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