Thursday 1 February 2024

In case of direct recruitment, seniority cannot be fixed in terms of roster points and should be on the basis of merit list only. A draft proceedings when objection raised by some employees

 

PROCEDINGS OF THE COMMISSIONER OF COMMERCIAL TAXES,

TELANGANA STATE :: HYDERABAD.

 

Present: V.ANIL KUMAR, I.A.S.,

 

TS CCT’s Ref.No.C(DX2)/937/2012 – Zone VI (1995 batch)      Dated: 04.06.2016

Sub: SUITS – O.A.No.3960/2012 filed by Smt.N.Aruna, DCTO, and     D.Shailaja, DCTO (1995 DR  ACTOs of Zone-VI) before the Hon’ble APAT –  Orders passed - Revised integrated seniority list of   ACTOs for the  panel year 1992-93 to 1999-2000 of Zone VI – As per APPSC Merit

                     Ranking   - Revised Integrated show cause notice issued – Objections

                     Called for – Objections received – Examined – Final – Orders –

                     Passed Reg.

 

            Ref:   1.CCT’s Ref.No. DX2/1469/2011-Zone VI, dtd. 23-4-2012.

          2. Orders of The Hon’ble APAT O.A.No.3960 of 2012, dated.          15.10.2012.

                      3. G.O.Rt. No.28, Revenue (CT.I) Department, Dt.23-01-2015.

                      4. Representation of Smt. N.Aruna, DCTO, Zone VI, Dt.05-11-2012           (1995 DR  ACTO batch)

          5.  Representation of Smt D.Shailaja, DCTO, Zone VI,  dt. 05-11-2012.

   (1995 DR  ACTO batch)

                     6. TS CCT’s Ref. No. C(DX2)/937/2012-1, dtd. 13-1-2016.

       7. Representation of Sri M. Dhananjaya Naik, CTO, Jeedimetla

            Circle, dtd. 14-03-2016.

                8. Representation of Sri P. Bheemla, CTO, Keesara Circle,

                      dtd. 14-3-2016.

                9. Representation of Sri L. Narahari, CTO, IDA Gandhi Nagar

            Circle, dtd. 14-3-2016.

                             

                                                                                                *****

                   The integrated seniority list of ACTOs for the panel year 1975-76 to 1991-92 and for the panel year 1992-93 to 1999-2000  of Zone-VI has been revised/finalized vide CCTs Ref. No. DX2/1469/2011 Zone VI, dtd. 23-4-2012. Subsequently, as per the Government orders in the reference 3rd cited, seniority of ACTOs for the panel year 1992-93 to 1999-2000 of Zone-VI was also revised.  

             The Hon’ble APAT have issued orders dt 15-10-2012 in  O.A.No. 3960 of 2012 filed by Smt. N.Aruna and D.Shailaja, DCTO’s (DR  ACTOs of Zone-VI) with directions as follows:

               “In the light of the submissions made by the learned counsel for the applicants and in the light of the judgement in O.A. No.3044/2009 dated 26-12-2011, the O.A. is disposed of, directing the respondents to prepare fresh seniority list as per the merit ranking given by the A.P. Public Service Commission and also as per the provisions of Rule 33(b), 36(i) of the A.P. State and Subordinate Service Rules  after giving opportunity to the affected parties”.                                                    

           In view of the above orders of the Hon’ble Tribunal, Smt. N.Aruna, DCTO, and D.Shailaja, DCTO (DR ACTOs of Zone-VI) have requested the Commissioner (CT), to revise the integrated seniority list in the cadre of ACTOs (DR) only for the above panel years as per APPSC merit ranking.

              The merit list of selected candidates as per merit by direct recruitment ACTO’s of Zone-VI relating to Group-II services, Notification No’s. 8/90 has been obtained from the Secretary, APPSC, Hyderabad for implementation of the above orders of the Hon’ble Tribunal.

          In view of the above orders of A.P.A.T. in O.A. No. 3960/2012, it is proposed to revise in so far as DR ACTOs in   the seniority list of DR ACTOs batch 1995 as per their ranking given by APPSC in Zone VI i.e., Secunderabad and Hyderabad (Rural) Divisions from the panel year 1992-93 to 1999-2000 vide reference 1st cited, to implement the merit ranking and accordingly the proposed seniority list of DR ACTOs of 1995 batch, a revised show cause notice was issued vide reference 6th cited and affected persons were requested to file their written objections, if any,  within fifteen (15) days from the date of publication in the C.T. Department portal  www.tgct.gov.in.

            Aggrieved by the above show cause notice, the following individuals have filed objections.

1.  Sri M. Dhananjaya Naik, CTO, Jeedimetla

     Circle.

         2.  Sri P. Bheemla, CTO, Keesara Circle

         3.  Sri L. Narahari, CTO, IDA Gandhi Nagar Circle.

 

Common objections filed by Sri M. Dhananjaya Naik and Sri P. Bheemla and Sri L. Narahari, CTO’s:-

 

(a)            They stated that the individuals who filed O.A.No.3960/2012 (Smt N. Aruna and                Smt D. Shailaja) in APAT have not raised their objections either during the finalization of seniority lists by the Nodal Deputy Commissioners (CT) or during the finalization of integrated seniority list of ACTOs of Zone VI by the CCT at any stage. Further, they have neither raised any objections during the finalization of Zonal seniority lists of DCTOs of Zone VI and also during the finalization of State wide Integrated Seniority lists of DCTOs of all Zones. They have neither Appealed to the Appellate authorities nor filed any representations for revision of seniority list finalized so far in the cadre of ACTO or DCTO. Thus they do not have any moral right to question the seniority lists finalized long back which has been time barred.

 

 

(b)           The proposed revision of seniority will have a direct impact on the seniority lists in the cadre of ACTO and DCTO of all Zones in united A.P. as the lists were finalized long back at Zonal level and State level. Thus the seniority lists in the cadre of ACTOs and DCTOs have to be accordingly revised, as such all the above seniority lists have been finalized in United A.P. As per the A.P. Reorganization Act, 2014, any orders which will have impact on the orders finalized prior to the bifurcation of State of A.P. shall not be revised or modified within the period of two years from the ‘Appointed Date’ i.e. 02-06-2014.

 

            The individuals stated that as per the rule position, the seniority lists of employees joined prior to the issuance of GO Ms No. 436, General Administration (Ser. D) Department, Dated. 15-10-1996 and Government Circular Memo. No. 16 / Ser. A / 93-39, General Administration (Ser. A) Dept, Dated. 21-04-1999 shall not be disturbed or revised. The seniority of the DRs who have joined prior to 1996 shall be fixed strictly as per the inter-se list issued by the APPSC as per roaster points specified by the APPSC and the seniority of DR CTOs joined after 10/1996 shall be fixed in consultation with APPSC and as per the merit list issued by the APPSC, whereas, in my case, the APPSC was not been consulted for giving its opinion.

 

(c)             Further, they submitted that  they have joined as DR ACTO on 30-06-1995 and the newly amended rules shall not be applicable to them and the seniority lists which were  finalized long back based on the old regulations in the cadre of ACTO and DCTO shall not be disturbed now.

 

             The judgment issued in O.A. No.3960/2012 is as under.

 

“In the light of the submissions made by the learned counsel for the applicants and in the light of the judgment in O.A. No.3044/2009 dated 26-12-2011, the O.A. is disposed of, directing the respondents to prepare fresh seniority list as per the merit ranking given by the A.P. Public Service Commission and also as per the provisions of Rule 33 (b), 36 (i) of the A.P. State and Subordinate Service Rules  after giving opportunity to the affected parties”.                                                                            

             The judgment itself is the explanatory to the fact that the seniority lists have to be prepared ‘as per the merit ranking given by the A.P. Public Service Commission and also as per the provisions of Rule 33 (b), 36 (i) of the A.P. State and Subordinate Service Rules 1996’.

 

(d)           Further, they stated that the orders in O.A. No. 3960/2012 by the Hon’ble APAT were issued based on the judgment issued in O.A. No. 3044 of 2009 which is related to the DR ACTOs of Zone III, who have joined in 2005-06. Whereas, in the instant case the petitioners are the DR ACTOs who have joined in 1995 i.e. prior to 1996 and prior to the amendment of A.P. State and Subordinate Service Rules in 1996, as such they are not eligible to claim the seniority based on the merit list. Therefore, the proposed revision of seniority list of ACTOs of 1995 batch is not legally justified.

 

The individuals have requested to withdraw the proposed revision of seniority list.

Reply:

 

          The objections filed by the above individuals have been examined with reference to A.P. State & Sub ordinate Service Rules, orders of the Hon’ble Tribunal issued in respect of the Applicants in CA no.608/2014 in OA No.3960/2012, also orders of Tribunal issued in similar other cases, orders of Hon’ble High Court of Andhra Pradesh and also the orders of Hon’ble Supreme Court of India.

 

            As per Rule 33(b) and Rule 36(i) of AP State and Subordinate Rules, the inter-se-seniority among the direct recruit individuals have to be fixed as per the merit ranking assigned to them by the Andhra Pradesh Public Service Commission. The relevant Rules are extracted below:

 

A.P. State & Sub ordinate Service Rules, 1996:

 

Rule 33:

(b) The appointing authority may, at the time of passing an order appointing two or more pensions simultaneously to a service, fix either for the purpose of satisfying the rule of reservation of appointments or for any other reason the order of preference among them; and where such order has been fixed, seniority shall be determined in accordance with it :

 

Provided further that the order of merit or order of preference indicated in a list of selected candidates prepared by the Public Service Commission or other selecting authority, shall not be disturbed inter-se with reference to the candidates position in such list or panel while determining the seniority in accordance with this rule and notional dates of commencement of probation to the extent necessary, shall be assigned to the persons concerned, with reference to the order of merit or order of preference assigned to them in the said list.

 

As per clause (i) of Rule 36 of A.P.State and Subordinate Services Rules the inter-se-seniority of direct recruits shall be determined as follows:

           

“(i) In respect of the candidate selected by the Andhra Pradesh Public Service Commission or other selecting authorities by direct recruitment, shall be with reference to their ranking assigned irrespective of the date of commencement of their probation in that category.”

        Smt.Aruna and Smt.D.Shailaja, DCTOs(now CTOs) have filed O.A.No.3960 of 2012 before the Hon’ble Tribunal seeking to declare the seniority list of ACTOs of Zone VI of 1995 batch of direct recruits vide CCT’ s Ref.No. DX2/1249/2005, dated 15.11.2005 and CCT’s Ref.No.DX2/1469/2011 – Zone VI dated 23-4-2012 issued by the Commissioner of Commercial Taxes as illegal and arbitrary. 

            The applicants have contended that the seniority list issued vide above proceedings dated 23-04-2012 of the Assistant Commercial Tax Officers, belonging to the Batch of 1995 was prepared on the basis of the roster points, without preparing the same on the basis of merit ranking under Rule 33(b) and 36(i) of A.P. State and Subordinate Service Rules.   They have therefore sought directions to the respondents to prepare the seniority list on the basis of merit ranking by exercising power under Rule 33(b), 36(1) of A.P.State and Subordinate Service Rules.

        The Hon’ble Tribunal vide its orders dated 15-10-2012 have passed the following orders:

“ In the light of the submissions made by the learned counsel for the applicant and in the light of the judgment in O.A.No.3044/2009, dated 26-12-2011, the O.A. is disposed of, directing the respondents to prepare the fresh seniority list as per the merit ranking given by A.P.P.S.C. and also as per the provisions of Rule 33(b), 36(1) of the A.P.State and Subordinate Service Rules after giving opportunity to the affected parties.

        When the above orders were pending implementation for want of supply of merit lists from the APPSC, the applicants have filed Contempt Application No.608 of 2014 before the Hon’ble Tribunal.

            The C.A came up for hearing before the Hon’ble Tribunal on 22-4-2016 and after perusing the letter dated 21-04-2016 of Commissioner(CT) seeking some more time to pass the orders in the matter, the Hon’ble Tribunal adjourned the matter  finally to 20-06-2016 for full compliance of the orders of the Hon’ble Tribunal.

            The Hon’ble Tribunal in its earlier judgement in a similar case, in the OA No.3044/2009, dated 26-12-2011, passed orders as under:

“ In view of the submissions made above and after going through the material placed on record, it is appropriate to direct the respondents to prepare seniority list as per the provisions contained in Rule 33(b) and 36 of A.P.State and Subordinate Service Rules.  In the result, the OA is disposed of by setting aside the impugned seniority list issued vide proceedings No.106-A/2006/A4, dated 8-12-2008 by respondent No.1 and the respondents are directed to prepare fresh seniority list as per the ranking given by the A.P.Public Service Commissioner and also as per the provisions contained in Rule 33(b) and 36 of A.P.State and Subordinate Service Rules after giving opportunity to the affected parties.  In viw this, M.A. stands closed.”

The Hon’ble Tribunal in its orders dated 21-12-2010 in another similar case in OA No.1268/2008, relying on the judgements of Hon’ble High Court of Andhra Pradesh in W.P.No.12237 and 12238/2001, and also Hon’ble Supreme Court judgement (2003) 5 SCC 304, held that:

“The words “satisfying the rule of reservation of appointments in Rule 33(b) of the A.P.State and Subordinate Service Rules, should be understood that the roster points have to be taken into consideration to fix the number of vacancies available for them due to reservations and that does not mean that roster points are to be followed for the purpose of seniority.”

        The Hon’ble Tribunal issued following directions in the above case:

“The first respondent is directed to prepare the seniority list of direct recruits appointed pursuant to Notification No.10/99 on the basis of merit list in Table-I furnished in this order and necessary orders to be passed after giving opportunity to the effected parties within a period of 12 weeks from the date of receipt of a copy of this Order.”

        The Hon’ble High Court of Andhra Pradesh in W.P.No.12237 and 12238/2001, in the case of Smt. Victoria Devakumari vs Commissioner and Director of School Education, Government of A.P., Hyderabad, in W.P.No.12237 and 12238/2001 held that:

“The Service Commission is the recruiting agency.  The merit list prepared by it will thus, have to be followed in Special Rule 11(b) aforementioned.  For the said purpose, the State wide seniority list prepared by the Service Commission in the order of merit in terms of the aforementioned rules is required to be prepared.  Reservation policy of the State in terms of Rule 22 of the General Rules will have no bearing for preparation of seniority list, is no longer res integra.”

        Subsequently, the Hon’ble Supreme Court consisting of Three Hon’ble Judges in a case between Bimlesh Tanwar Vs. State of Haryana reported in (2003) 5 SCC 304 considered a similar question and following the earlier judgments of the Hon’ble Supreme Court have held that the seniority cannot be fixed in terms of roster points and should be on the basis of merit list only.

As per clause (i) of Rule 36 of A.P.State and Subordinate Services Rules the inter-se-seniority of direct recruits shall be determined as follows:

       

        “(i) In respect of the candidate selected by the Andhra Pradesh Public Service Commission or other selecting authorities by direct recruitment, shall be with reference to their ranking assigned irrespective of the date of commencement of their probation in that category.”

 

In view of the orders of the Hon’ble Tribunal in the case of Applicants in the OA No.3960 of 2012, and also the judgements of Hon’ble High Court of Andhra Pradesh and Hon’ble Supreme Court of India and as per Rule 33(b) and 36(i) of A.P.State and Subordinate Service Rules, there are no merits in the objections filed by Sri M.Dhananjay Naik, Sri P. Bheemla and Sri L. Narahari.  The objections of the individuals that the applicants in the above OA have never raised their objections regarding fixation of their seniority as per the merit list of A.P.Public Service Commission while finalization of seniority is not correct.  The Applications have raised their objections while finalization of their seniority in the cadre of DCTO and requested to prepare the seniority as per merit list.  Their request could not be considered for want of receipt of Merit Lists from the AP Public Service Commission.  In fact, the individuals should have impleaded in the OA filed by the Applicants if they have any grievance against the preparation of seniority list as per Merit List or appealed against the orders of Hon’ble Tribunal in the above OA.  As there are no merits in the objections filed by the individuals, same are hereby rejected.

             In view of the above, the seniority of DR ACTOs is revised as per the orders of Hon’ble APAT in O.A. No. 3960 of 2012, dated 15-10-2012.  Therefore, the proposed revision of integrated seniority of DR ACTOs of 1995 batch of Zone VI as per APPSC merit ranking  issued vide reference 6th cited is hereby confirmed as shown in the Annexure which is subject to outcome of SLP’s/W.P’s/O.A’s/C.A’s pending, if any, before the respective Appellate forums.

 

           A copy of this order is available in the portal www.tgct.gov.in

 

Encl: Annexure

                                                                                                  Sd/- V. Anil Kumar

                                                                                     Commissioner of Commercial Taxes

 

To

All the individuals through the DCs (CT), concerned.

Copy to the Deputy Commissioner’s (CT), Secunderaband and Hyderabad

   (Rural) Nodal Divisions.

Copy to the Additional Commissioner (CT), Central Computer Wing, O/o CCT, TS,

   Hyderabad with request to place the above final orders in the portal of

   C T Department.

Copy to the Superintendent, D Section, O/o Commissioner (CT), Telangana State,

     Hyderabad.

Stock file/Spare

 

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