Seniority is determined by substantive appointments within the permanent cadre. Temporary stop-gap appointments made de hors the rules do not confer seniority over regular appointees, and such temporary appointees must yield to regular direct recruits.

(1) APPLICATION for impleadment are dismissed.

IN Civil No. 1454/87

This is an unfortunate litigation in which the dispute relating to seniority of persons who were appointed as Assistant Commercial Tax Officers as early as in 1972, 1973 and 1974 is yet to be resolved. It is not necessary to repeat all the facts which led to the litigation. Suffice it to say that the provisional seniority list published by the State Government in 1985 was the immediate cause of action of the present litigation. The petitioners before the High court Challenged the said seniority list and claimed that the relevant rules for fixing the seniority had not been followed by the State government in drafting the provisional seniority list. The High court has considered the matter in detail and struck off the said provisional seniority list. The High court laid down certain guide- lines for drafting the seniority list. They are as follows: 1 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 1966 years list and that seniority should be determined with reference to the date of their joining as Joint Commercial Tax Officer, and 3 The date on which an Officer commences probation is the proper criterion for fixing the inter se seniority. 4 If there are vacancies out of the required reservations of 40% in the permanent cadre of A.C.T.Os. for direct recruits, any appointment made either by transfer or by promotion cannot be utilised to fill up those vacancies. Such appointment being of a temporary character, whenever direct recruits are appointed through Public Service Commission, they being holders of permanent posts by direct recruitment, they have a right to be appointed to whatever posts that are taken out of the 40% posts reserved for direct recruitment.

(2) THE High court ordered at the end of the judgment that on the basis of the earlier guide-lines set out in the judgment, the Assistant Commercial Tax Officers bearing S.Nos. 129-519 in the impugned seniority list could be placed above the writ petitioners who were direct recruits in inter se seniority list only if they had held the post substantively within the permanent cadre strength allotted to the particular category even before the writ petitioners commenced their probation.

(3) IN these appeals by the State Government, there is no quarrel regard to the guide-lines 1 to 4 quoted above. The dispute raised by the State government is with reference to the last direction given by the High court with regard to the Assistant Commercial Tax Officers bearing S. Nos. 129 to 519 in the impugned seniority list. Specific objection is taken against the use of the expression "permanent cadre strength". It is contended that the cadre consists not only permanent posts but also temporary posts. It is argued by the learned counsel for the State Government that as regards the direct recruits, they were recruited only for permanent posts but with regard to the transferees from other services, they were appointed not only to permanent posts but also to temporary posts. It is the contention of the learned counsel that all these persons who are holding the temporary posts prior to the appointment of the writ petitioners should also to considered for the purpose of fixing the seniority and they should not be omitted out of consideration. Learned counsel for the State contended that temporary appointment to permanent post is different from regular appointment to a temporary post.

(4) THE argument is attractive. But in the records made available in this court or in the High court, there is nothing to show that the cadre strength was fixed by the government in any particular year to comprise not only permanent posts but also temporary posts. The relevant discussion found in the judgment of the High court on this aspect of the matter shows that the State government did not place any record before the H