Madras High Court

P.Maya Krishna Moorthy vs The Principal Secretary/Commissioner on 6 February, 2025

    2025:MHC:557




                                                                            W.P.(MD) No.1838 of 2019


                       BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                              DATED : 06.02.2025

                                                    CORAM:

                                  THE HONOURABLE MR.JUSTICE M.JOTHIRAMAN

                                           WP.(MD) No.1838 of 2019
                                                    and
                                           WMP.(MD).No.1563 of 2019

                     P.Maya Krishna Moorthy                                  .. Petitioner
                                                      Vs.
                     1.The Principal Secretary/Commissioner
                       of Commercial Taxes,
                       Ezhilagam,
                       Chepauk,
                       Chennai – 600 005.

                     2.The Joint Commissioner of State Tax,
                       Tirunelveli Division,
                       Tirunelveli.                                          .. Respondents
                     Prayer:Petition filed under Article 226 of the Constitution of India,
                     praying for issuance of Writ of Certiorarified Mandamus to call for the
                     records of the first respondent in Proc No.H3/15216/2014 dated
                     27.04.2015 and quash the same as illegal in so far as the Paragraph 4 (i)
                     and 4 (ii) is concerned and consequential order passed by the second
                     respondent in Proc No.A8/5585/2018 dated 04.01.2019 and quash the
                     same as illegal and further direct the respondents to fix my seniority in
                     the cadre of Assistant by considering my service rendered in the cadre of
                     Assistant with effect from 02.01.2013.


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                                                                                      W.P.(MD) No.1838 of 2019


                                        For Petitioner      :      Mr.J.Pooventhera Rajan

                                        For RR1 & 2         :      Mr.G.V.Vairam Santhosh
                                                                   Additional Government Pleader

                                                                ORDER

This Writ Petition is filed to challenge the order passed to call for

the records of the first respondent in Proc.No.H3/15216/2014 dated

27.04.2015 and quash the same as illegal in so far as the Paragraph 4 (i)

and 4 (ii) is concerned and consequential order passed by the second

respondent in Proc.No.A8/5585/2018 dated 04.01.2019 and quash the

same as illegal and further direct the respondents to fix petitioner's

seniority in the cadre of Assistant by considering his service rendered in

the cadre of Assistant with effect from 02.01.2013.

2. It is the case of the writ petitioner that the petitioner is working

as Assistant in the Office of State Tax Office – I, Kovilpatti, Tirunelveli

State Taxes Division, Tirunelveli. He is a direct recruitee to the post of

Assistant in the respondent Department through Tamil Nadu Public

Service Commission and alloted to Vellore Commercial Taxes Division.

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2 (i) . While the petitioner was in service of the Vellore

Commercial Taxes Division, he left his family at Tirunelveli and hence,

he was unable to take care of his family. Hence, he made a representation

before the first respondent to transfer him to Tirunelveli Commercial

Taxes Division. But his request for transfer to another Division in the

same Department Unit was considered by the first respondent after a

delay of merely one (1) year, he was transferred from Vellore

Commercial Taxes Division to Tirunelveli Commercial Taxes Division

with a condition to forego his seniority and not to file any case regarding

fixation of seniority.

2(ii). While passing the impugned order, the first respondent had

referred to Rule 20 (a) (iii) of the Special Rules for the Tamil Nadu

Ministerial Service Rules, and the same is not applicable to the

petitioner. Since it will only apply to the case regarding transfer of a

member working under the Tamil Nadu Ministerial Service Rules from

one Department Unit to another Department Unit. But the petitioner

requested the first respondent to transfer him from Vellore Division to

Tirunelveli Division of the same Commercial Taxes Department.

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3. The second respondent has fixed the petitioner's seniority only

in the year 2018 by way of inter-se seniority list of Assistants working in

the Tirunelveli Commercial Taxes Division, wherein the petitioner was

placed at seniority No.135, among the Assitants working in the

Tirunelveli Commercial Taxes Division. The petitioner made an

objection dated 31.07.2018 before the second respondent to fix his

seniority in the cadre of Assistants reference to official date of

appointment as Assistant. However, his objection was rejected by the

second respondent. Hence, this writ petition.

4. The learned counsel appearing on behalf of the petitioner would

submit that the order impugned, the first respondent had referred to Rule

20 (a) (iii) of the Special Rules of the Tamil Nadu Ministerial Service

and the same is not applicable to the petitioner since it will apply only to

the case regarding transfer of a member of Tamil Nadu Ministerial

Service from one departmental unit to an office in another departmental

unit. But the petitioner requested the first respondent to transfer him from

Vellore to Tirunelveli of the Commercial Taxes Department and

therefore, the petitioner is entitled to claim his seniority from the date of

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his original appointment as Assistant.

5. Per-contra Mr.G.V.Vairam Santhosh, learned Additional

Government Pleader would submit that the petitioner was transferred

from Vellore Commercial Taxes Division to Tirunelveli Commercial

Taxes Division with a condition to forego his seniority and not to file any

case, regarding fixation of his seniority. To strengthen his contention, he

has relied upon the judgment of Hon'ble Division Bench Judgment of

this Court dated 29.04.2014, in The Principal Secretary/Commissioner

of Commercial Taxes, Cheapuk, Ezhilagam, Chennai – 600 005. and

Ors Vs. D.Murugesan and Anr. in [W.A.(MD).Nos.4, 22 & 615 of

2020] and submitted that the petitioner himself forego his seniority

thereafter he filed writ petition, which is contrary to Service Rules

applicable to the writ petitioner.

6. This Court has considered the submissions advanced on either

side and perused the materials available on record.

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7. It is pertinent to mention that the Hon'ble Division Bench of this

Court considered the similar issue of relating to fixing of seniority, being

transferred to another Department in the Commercial Taxes Division and

decided the issue cited supra vide common judgment dated 29.04.2024.

Wherein, it is observed as follows:-

“34.A perusal of Rule 20 further reveals that there is no provision for a one way transfer from one administrative unit to another administrative unit on the basis of request. Hence, if such an interpretation is given to Rule 20, the petitioners could not even be transferred from one division to another division. Though a request has been made by the petitioners, the authorities considered their request sympathetically and treated it as an administrative transfer. Hence, the writ petitioners were called upon to issue a certificate that they are ready to forego their seniority, when they are transferred to a different division. Only after such an undertaking was given by the writ petitioners, their cases were referred for concurrence to TNPSC. Therefore, though it is not a case of mutual transfer, the request transfer falls within the category of administrative necessity and therefore certainly the petitioners have to forego their seniority. The fact that the petitioners have not challenged the non-granting of travelling allowance which they have foregone as contemplated under Rule 20 would clearly indicate that the petitioners also treated the transfer only as on administrative necessity. Therefore, we are not inclined to accept the interpretation of the Writ Court that the transfer is not covered under Rule 20(a)(iii) of Tamil Nadu Ministerial Service Rules.

35.All the writ petitioners have been transferred in the year 2008-2009. The transfer order clearly specifies that the petitioners should forego their seniority and they will be placed as last in the list of Assistants in the transferred division. Having given their undertaking to

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forego their seniority and accepted the order of transfer, the writ petitioners have chosen to challenge that the portion of the transfer order in the year 2013 after a lapse of more than 4 year. The Hon'ble Supreme Court in a judgment reported in ( 2008) 8 SCC 648 (Union of India and others Vs. Tarsem Singh) in Paragraph No.7 has held as follows:

“7.To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the re-opening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or re-fixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. In so far as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.”

36.In view of the judgment of the Hon'ble Supreme Court, it is clear that whenever a claim relating to seniority or promotion is raised, after many years which would affect the right of others, the writ petition has to be dismissed on the ground of laches. In the present case, the petitioners have themselves foregone their seniority in their parent

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division and they have accepted the transfer order subject to the foregoing of the seniority 4 years prior to the filing of the present writ petitions. Probably when a panel is drawn for the next promotional post, namely Deputy Commercial Tax Officer, the petitioners have woken up and attempted to resurrect their alleged seniority. Any interference by this Court at this length of time would certainly affect the seniority and promotion of other Assistants in the said division who are already senior to the writ petitioners.

Therefore, the writ petition ought to have been dismissed also on the ground of delay and laches.”

8. In the instant case on hand, the petitioner himself foregone his

seniority in his parent division and he has been accepted the Transfer

order subject to the foregoing of the seniority.

9. The above cited case is also squarely applicable to facts of the

present case and there is no merit in this writ petition and the same is

liable to be dismissed. Hence, this writ petition stands dismissed. No

costs. Connected writ miscellaneous petition is also closed.

06.02.2025 NCC : Yes/No Index : Yes/No Internet : Yes nst

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1.The Principal Secretary/Commissioner of Commercial Taxes, Ezhilagam, Chepauk, Chennai – 600 005.