Holding

The High Court correctly filled the lacuna in the Special Rules by laying down general principles, and the seniority list prepared on those principles is valid; the petition is dismissed.

Summary

The petitioner, a direct recruit Joint Commercial Tax Officer (JCTO) appointed in 1966, challenged a fresh combined inter‑se seniority list prepared by the Government in 1977 which placed him below a transferee recruit in the 1967 list. The High Court had earlier quashed the original seniority list and directed a fresh determination based on three principles: treating each year as a unit, using the date of joining as JCTO, and using the date of commencement of probation as the proper criterion. The Supreme Court examined whether the High Court could fill the lacuna in the Special Rules governing the Tamil Nadu Commercial Taxes Service and whether the principles it laid down applied to a petitioner who was not a party to the earlier writ petitions. It held that the High Court correctly derived general principles from the service rules, that seniority should be based on the date of commencement of probation (not the training period), and that the principles are of general application and thus binding on the petitioner. Consequently, the seniority list prepared on those principles was upheld and the petition was dismissed.

Issues considered

Whether the High Court has the power to lay down principles for determining inter‑se seniority where the Special Rules are silent.
Whether principles formulated by the High Court in earlier writ petitions apply to a petitioner who was not a party to those petitions.
What is the appropriate criterion for fixing inter‑se seniority between direct recruits and transferee recruits under the Special Rules.
Whether seniority in the lower cadre determines seniority in higher cadres (not finally decided).
Whether the delay in issuing the seniority list warrants relief.

Legislation cited

Constitution of Indias. Article 32
Tamil Nadu Commercial Taxes Service (Special Rules)

Subjects

seniorityinter‑se senioritycommercial tax servicedirect recruitmenttransfer recruitmentprobationservice rulesHigh Court jurisdictionlacunaArticle 32

Judgment

777

K.DHEENADHAYALAN A
v.
STATE OF TAMIL NADU AND ANR.
April 22, 1980
[R. S. SARKAR!A AND R. S. PATIIAK, JJ.J B

Seniority List-Fresh lnter-se seniority list drawn as per the principles

. indicated by the liigh Court and according to the soecial Rules for Tamil Nadu
Commercial Taxes· Service-Petitioner not a party before the Iligh Court's
proceedings-Whether directions would bind the petitioner-The power of the
High Court to fill up the lacuna in an order assailed.
c
Under the· Special Rules of the Tamil Nadu Commercial Taxes Service,
recruitment to the junior most post, Joint Commercial Tax Officer is made by
direct recn1itn1ent and recruitment by transfer from Deputy Conlffiercial Tax
Officers in the State Commercial Taxes Subordinate Services in the proportion

• I : 2. The higher posts are filled by promotion from officers in the category
of posts immediately below. Under Rule 2 (b) all promotions are to be made
on the grounds of merit and ability, seriiority being considered \Vhere merit and D
ability are equal. Rule 5(c) provides that every person appointed as a Joint
Commercial Tax Officer must be on probation for at least two years on duty;
in the case of direct recruitment the probationary period con1n1ences from the
date on which the officer complet~ his training and; in the case of recruitment
by trnru;fer it commences from the date the officer }oins duty. Under rule 7(b),
the periOO of training of a direct recruit does not count towards probation.
E
The petitioner was recruited to the Cadre of Joint Co1nrnercial Tax Officer
as a direct recruit in 1966 and WM posted for training which he joined on 6th
June 1966; he comrnenced his period of probation on 18th August 1967. On
16th August 1972, the petitioner was promoted to the post of Commercial
Tax Officer and on 14th January 1976 he was promoted as Assistant Com-
mis~ioner. The second respondent joined the post of Joi~t c·ommercia1 Tax
(Jfficer ns a promotee on 25th .January 1967 and comn1enccd his probation
F
-~ from that date. He was promoted as Conunercial 'fax Officer on 17th Decem-
. ber 1972 and as Assistant Commissioner on 26th AuguM: 1976.

Jn the combined inter-~ seniority list issued in G.0.Ms. No. 4103 dated
9th July 1973, herein the petitioner and the second respondent were shown
• in the 1966 list at serial numbers 43 and 52 respectively. The validity of the G
combined int&-se seniority list was challenged in two writ petitions Nos. 2016
and 2017 of 1972 filed by certam other officers in respect of the ranking
from serial numbers 51 to serial number 78. The petitioner was not a party
to the writ petition. The writ petition wa' allowed by the Madras High
Court. The High Court took note of the fact that no rules had been framed
indicating how the inter-se seniority between the direct recruits and the
transferee recruits had to be fixed and therefore directed a fresh determination
H
of the inter-se seniority on the basis of three principles: (i) Each year should
be taken as a unit for fixing the inter-se seniority; (ii) Persons not actually
appoiNed in the year 1966 should not be included in the 1966 year's list
l l-463 SCI/80
ns SUPREME COURT REPORTS [1980] 3 S.C.R.

A and their seniority should be determined with reference to the date of tloeir
joining as Joint Commercial Tax Officers; and (iii) The date on which an
officer commences probation is the proper criterion for fixing the in1er-se
seniority. +
In the new combined inter·se seniority list, so prepared and issued by the
Government in their order No. G.O. Ms. No. 2228 dated 27th December 1977,
both the second respondent and the petitioner were shown at serial number 48
B
and serial No. 49 respectively in the 1967 List. The petitioner, apprehending
that the seniority assigned to him in the second combined inter·se seniority
list of Joint Commercial Tax Officers would prejudice him in the promotions
to be made to the category of Deputy Commissioners has
validity of that seniority list.
challenged the
•
Dismissing the petition, the Court
c
HEW : I. Where the rules are specifically sileat there is no doubt that
the Government is entitled to make an order filling up any lacuna or uncover-
ed gap in the rules. There is good reason in the principle followed in this
case that seniority should be based on th.e length of effective service. 'The date
.of confirmation in a post then loses its relevance. [781 F-G]

2. The principle that officers whose effective· entry into the service pertains
D
to a particular year should be regarded as a unit in themselves for futiag tlleir
inter·se seniority is valid. Correctly, th~refore, the petitioner and tho secoru1
respondent have been placed in the 1967 List. Since the Special Ru!~ do
not contemplate any credit being given for the period of training undergone
by a direct recruit and the probationary period commences only ~ the
training ends, the year of appointment is of little moment. [781 B-C. o:BJ
E
.....'
3. The principles propowided by the High Court are principles of gene.-al
application and drawn from the rules governing the service and the conCepto;; ii!
. implied therein. They are not principles applicable peculiarly olily to the
parties to the v. rit petitions. They are principles which could legitimately
1

fonn the basis of a combined inter se seniority list in respect of Joint Celn-
n1ercial Tax Officers. The places assigned to the petitioner and the second
respondent duly represent their relative seniority. The second seniority list
"
I"

was prepared after issuing notice to all including the petitioner and prepared ~-
after considering objections raised. [782 A-CJ ~.
• ~
i··
ORIGINAL JURISDICTIO'l : Writ Petition No. 461 of 1979.
(Under Article 32 of the Constitution)
Dr. Y. S. Chitale, R. Mohan, P. N. Ramalingam and A. T. M.
G
Sampath for the Petitioner.
A. V. Rangam for the Respondent.
The Judgment of the Cca;rt was delivered by
PATHAK, J.-The Tamil Nadu Commercial Taxes Service consists
ff of a hierarchy of posts. At the base lies the post of Joint Commercial
Tax Officer, above it is the post of Commercial Tax Officer, then of
As11istant-Commissioner, thereafter of Deputy Commissioner and
K. DHEENADHAYALAN V. TAMIL NADU (Pathak, ].) 779

finally there is the post of Selection Grade Deputy Commissioner. A
The service is governed by the Special Rules for the Tamil Nadu Com-
mercial Taxes Service (the "Special Rules"). Recruitment to · the
junior most post, the Joint Commrcial Tax Officer, is made by (i)
-direct recruitment and (ii) recruitment by transfer from Deputy Com-
mercial Tax Officers in the State Commercial Taxes Subordinate
B
• Service. Permanent vacancies in the posts of Joint Commercial Tax
Officer are filled by direct recruitment and by "transfer" recruitment in
the proportion I : 2. The higher posts are filled by promotion from
officers in the category of posts immediately below. Under rule :C(b)
-of the Special Rules all promotions are to be made on the grounds of
merit and ability, seniority being considered only where merit and abi-
lity are equal. Rule 5(c) provides that every person appointed as a
c
Joint Commercial Tax Officer must be on probation for at least two
years on duty; in the case of direct recruitment the probationary period
commences from the date on which the Officer completes his training,
and in the case of recruitment by transfer it commences from the date
the officer joins duty. Under rule 7(b) the period of training of a direct D
recruit does_ not count towards probation.

The petitioner was recruited to the cadre of Joint Comn1ercja} Tax
'Officers as a direct recrnit in 1966, and was posted for training which he
joined on 6th June, 1966; thereafter he completed the probationary
_.._ period of two years. On 16th August, 1972 the petitioner was promo- E
ted to the post of Commercial Tax Officer. The second respondent was
promoted as Commercial Tax Officer on 17th December, 1972.

Promotion to the next higher category of posts, the Assistant Com-
missioners, followed. The petitioner was promoted as Assistant
Commissioner on 14th January, 1976 while the seeond respondent was I'
promoted on 26th August, 1976.

Meanwhile, by G. 0. Ms. No. 4103 dated 9th July, 1973 the GoverR•
ment passed an order notifying the combinedfinter-se seniority list of
• directly recruited Joint Commercial Tax Officers during the years 1964
to 1967 and the transferee Joint Commercial Tax Officers recruited G
during the years 1964 and 1966 on the basis of the principles set forth
in that order. The seniority list reflected the cyclical order based on
rule 2(c) of the Special Rules, that is to say, (i) direct recruit (ii) trans-
feree recruit (iii) transferee recruit. The petitioner was shown in the
"1966 list" at serial No. 43 of the overall seniority list and 18th August,
1967 was shown as the date of commencement of his probation. The l'
second respondent was also shown in the 1966 list, at serial No. 52 with
25th January, 1967 as the date of commencement of his probation.
780 SUPREME COURT REPORTS [1980} 3 S.C.R.

The validity of the combined inter-se seniority list was challenged
by two writ petitions, Writ Petitions Nos. 2016 and 2017 of 1972 filed
by certain other officers in respect of the ranking from serial number 51
to serial Number 78. The petitioner was not a party to the writ peti·
tions. The writ petitions were allowed by the Madras High Court by
its judgment dated 16th September, 1975. The High Court took note
B of the fact that no rules had been framed indicating how the inter-se
seniority between the direct recruits and the transferee recruits had to
be fixed. The High Court quashed the seniority list and directed a
fresh determination of the inter·se seniority on the basis of three prin-
ciples :
C I. Each year should be taken as a.unit for fixing the inter·se
seniority.
2. Persons not actually appointed in the year 1966 should
not be included in the 1966 year's list and their seniority
should be determined with reference to the date of their
joining as Joint Commercial Tax Officers; and
D
3. The date on which an officer commences probation is the
proper criterion for fixing the inter·se seniority.

Taking those principles into account, the Government then pre-
pared a fresh combined inter·se seniority list and published it by an
E order set forth in 0.0. No. 2228 dated 27th December, 1977. The
second respondent was now shown at serial number 48 and the peti-
tioner was shown at serial number 49 in the 1967 list.

The petitioner, apprehensive that the seniority assigned to him in
the second combined inter-se seniority list of Joint Commercial Tax
Officers would prejudice him in the promotions to be made to the .ate·
gory of Deputy Commissioners, has challenged the validity of that
seniority list. ..
The petitioner contends that the High Court has no power to lay
down the principles for determining inter-se seniority between direct
G recruits and transferee recruits and, in any event, his seniority cannot
be determined on the basis of the principles laid down by the High
Court inasmuch as he was not a party to the writ petitions. The
petitioner also takes exception to the statement contained in paragraph
16 of the State Government's counter affidavit to the effect that the
seniority of a Government Officer in the lower category is also the basis
H for assigning seniority in the higher category. Great emphasis has
been laid by the petitioner on the circumstance that he joined as Joint
Commercial Tax Officer earlier than the second respondent.
K. DHEENADHAYALAN V. TAMIL NADU (Pathak, J.) 78 l

In our opinion, the ptinciples which the Hiljh Court culled out as A
the basis for determining the inter-se seniority of !oint Commercial
Tax Officers are in the main drawn from the rules governing the service.
The petitioner cannot claim thaffor'the'purposeof seniority has service
must be considered with reference to the date on which he commenced
the period of training. The special Rules require that a direct recruit
must undergo a period of training. They also provide that he must B
• pass through a period' of probation. Thty further declare t:hat the
period of training will not count as a period spent on probation and
that the probationary period commences only when the training ends .
• · That being so, the relevant date for considering the petitioner's seniority
is 18th August, 1967. The rules do not contemplate any credit being
given for the period of training undergone by a direct recruit and, c
therefore, the fact that he was appointed in 1966 is of little moment.
The second respondent joined the post of Joint Commercial Tax Officer
as a transferee recruit and therefore the date of commencement of
his probation was 25th January, 1967. Clearly, he entered service
effectively from an earlier date than the petitioner.
D
Now having regard to the circumstance that the cadre of Joint
Commercial Tax Officers is drawn both from direct recruits and trans-
feree recruits, it is necessary to have a single combimd intcr-se seniority
list. There can be no quarrel with the principle that officers whose
effective entry into the service pertains to a particular year should be
regarded as a unit in themselves for fixing their inter-se seniority.
Correctly, therefore, the petitioner and the second respondent have
been placed in the 1967 list. We have already observed that the effec-
tive date on which. a direct recruit joins as a Joint Commercial Tax
Officer is the date on which he commences his probation. In the deter-
mination of inter-se seniority, the High Court has followed the pro- F
vision in the Special Rules that the posts of Joint Commerci2J Tax
Officers are to be filled in the proportion of I : 2 between direct recruits
and transferee recruits. The cyclical order in which the vacancies will
be filled on that basis are provided by the order of the Government
published in G.0. Ms. No. 4103 dated 9th July, 1973. Where the
rules are specifically silent there is no doubt that the Government is G
entitled to make an order filling up"any lacuna or uncovered gap in the
rules. It may also be observed that there is good reason in the princi-
ple followed in this case that seniority should be based on the length of
effective service. The date of confirmation in a post then loses its
relevance.
H
In regard to the contention of the petitioner that he was not a party
to the writ petitions decided by the High Court and that, therefore, the
782 SUPRE'.\IE COURT REPORTS [1980] 3 s.c.R.

A principles laid down in the High Court judgment should not be applied
to him, we think the submission to be without force. The principles
propounded by the High Court are principles of general application
and drawn from the rules governing the service and the concepts imp-
lied therein. They are not principles applicable peculiarly only to the
parties to the writ petitions. Indeed, we find no fault with the terms in
B which the principles have been enunciated. They are principles which
could legitimately form the basis of a combined inter-se seniority list
in respect of Joint Commercial Tax Officers. Having due regard to the
considerations mentioned above, we are of opinion that the places •
assigned in the second seniority list to the petitioner and the second
respondent truly represent their relative seniority.
c
We may also observe that the second seniority list was prepared
after issuing notice to the petitioner and affording him an opportunity
to be heard in the matter. It was after all the objections had been
considered that the list was finally drawn up. As regards the point
whether the seniority· of the petitioner in the category of posts higher
D than the category of Joint Commercial Tax Officers should be deter-
mined on the basis of his seniority as Joint Commercial Tax Officer,
that is a question which does not arise presently. No combined inter-
se seniority list in respect of the cadre of Assistant Commissioners or of
higher posts appears to have been drawn up. There is no material
before us to show that it has and, if it has, what is the position of se-
E niority assigned to the petitioner therein. In the circumstances we
think it premature to express any opinion on this point.
The second seniority list was prepared on 27th December, 1977.
The writ petition was filed in this Court in May, 1979. The gross
delay, plainly apparent, would constitute another ground for denying
F relief to the petitioner. But as, in onr judgment, the petitioner fails
'..,,_,...
on the merits we need not go further into the question of lac hes. __,,
The petition fails and is dismissed, but in the circumstances there is
no order as to costs.

G
S.R. Petition dismissed