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1995 Supreme(SC) 773
SUPREME COURT OF INDIA
BEFORE K. RAMASWAMY AND B.L. HANSARIA, JJ.
R. RAMASWAMY
Versus
GOVERNMENT OF T.N. AND OTHERS
Civil Appeal No. 7586 of 1995,{From the Judgment and Order dated 4-2-1994 of the Tamil Nadu Admn. Tribunal, Madras in O.A. No.632 of 1993}
Decided on 11-8-1995
Advocates appeared:
S. Sivasubramaniam. Senior Advocate (R. Nedumaran and V.G. Pragasam, Advocates, with him) for the Appellant; K.K. Mani and Ms A. Subhashini, Advocates, for the Respondents.
A.Subhashini, K.K.MANI, R.NEDUMARAN, S.SIVA SUBRAMANIAM, V.G.PRAGASAM
Headnote:
Income-tax Act - Section 84 – Industries - Income Tax - Capital Employed - Appellant-assessee is a company carrying on business of steel rolling mills and production of mild steel coils - income of assessee derived from newly established industrial undertakings was entitled to relief of Income-tax Act as it stood at that time - Relief was that income tax was not to be paid by an assessee on profit or gains derived from any industrial undertaking as did not exceed six per cent of capital employed in such undertaking – Held, Capital employed has to be computed in accordance with Rule 19 of Income Tax Rules - High Court has not examined facts of case and method of accounting by assessee and also scope of Rule 19 and Rule 19 (5), but had merely followed its earlier judgment which is not reported and has not been made available to court, court is of view that controversy raised in this appeal should be examined and decided afresh by High Court - High Court will examine scope and ambit of Rule 19 and to what extent sub-rule (5) thereof was applicable to facts of present case - Appeal is remitted to High Court – Appeal Disposed of.
ORDER
1. Leave granted.
2. The appellant was appointed, though temporarily, as a Project Officer in the Directorate of Tamil Culture Center on 21-5-1979. The Government stated in GOMS No. 296 dated 6-9-1989 that both the post of Project Officer in the erstwhile Directorate of Traditional Tamil Arts and that of Assistant Director in the Tamil Development Directorate are equivalent in status and carry an identical scale of pay. The service of the appellant as a Project Officer was also regularized by GOMS No. 88 dated 21-5-1990 wherein the Government has stated that "the service of Thiru R. Ramaswamy in the cadre of Project Officer in the erstwhile Department of Tamil Culture Center be regularised w.e.f. 22-5-1979, namely, the date of his appointment". Thereby he is a permanent incumbent for the post of Project Officer in the erstwhile Department.
3. When he was temporarily promoted as Assistant Director and sought promotion as Deputy Director, the question arose whether the appellant was senior to Respondents 3 and 4, who were appointed as Assistant Directors on 10-12-1979 and 25-4-1981 respectively. When that status was not given, he approached the Administrative Tribunal in OA No. 632 of 1993, which by order dated 4-2-1994 held that since Respondents 3 and 4 were substantively holding the post as Assistant Directors, the appellant is junior to them and the order of appointment by transfer clearly indicates that his claim for seniority would be determined at a later date In pursuance of the statutory order now made in GOMS No. 296 dated 6-9-1989 constituting the Tamil Nadu Ad hoc Rules for Temporary Posts of Assistant Directors, the appellant cannot be said to be senior to Respondents 3 and 4.
4. Shri K.K. Mani, the learned counsel appearing for Respondents 3 and 4, sought support for the conclusion reached by the Tribunal under Rule 8 of the said Ad hoc Rules which envisages that "Nothing contained in these rules shall adversely affect the persons holding the post of Assistant Director of Tamil Development Directorate on the date of issue of the Rules. Ms A. Subhashini, the learned counsel appearing for the State also sought to contend that even Rule 35(b) of the Tamil Nadu State and Subordinate Services Rules, on which the appellant sought to place reliance in support of his claim, itself mentions that when any difficulty or doubt arises in applying the sub-rule, seniority needs to be determined by the appointing authority. The Government being the appointing authority has been considering the matter and even at the stage of consideration in the light of the directions issued by the Tribunal, this appeal was filed and that, therefore, the Government could not be blamed for not determining the inter se seniority of the persons.
5. In view of the diverse contentions, the only question that arises for consideration is whether the appellant can be considered as senior to Respondents 3 and 4 as Assistant Directors in the present Directorate. Rule 35(b) of the Tamil Nadu State and Subordinate Services Rules states thus:
"35. (b) The transfer of a person from one class or category of a service to another class or category carrying the same pay or scale of pay shall not be treated as first appointment to the latter for purpose of seniority and the seniority of a person so transferred shall be determined with reference to the rank in the class or category from which he was transferred; where any difficulty or doubt arises in applying this sub-rule seniority shall be determined by the appointing authority."
6. In view of the order passed by the Government appointing the appellant substantively as Project Officer w.e.f. 22-5-1979 and treating the said post as equivalent to the post of Assistant Director carrying the same status and scale of pay the necessary implication is that he is holding the status and scale of pay of the post of Assistant Director in the present Directorate. However, the question is whether the appellant is senior to Res
