Point of Law: Seniority assigned to any employee could not be changed after a lapse of 7 years, though even on merit it was found that seniority of the petitioner therein had correctly been fixed.

JUDGMENT :

DINESH KUMAR SINGH, J.

1. WRIT PETITIONS:

These petitions have been filed for quashing the seniority list dated 09.08.2012 issued by the State Government for the cadre of Assistant Commissioner, Commercial Tax as well as order dated 20.03.2020 passed by the Government whereby representation dated 03.08.2019 given by one of the petitioners for re-fixing/revisiting the seniority list dated 09.08.2012 by placing Direct recruit Assistant Commissioners en-block over and above the promotees Assistant Commissioners has been rejected.

2. FACTS:

Since common questions of fact and law are involved, the facts of the lead petition are mentioned herein-below for deciding the controversy involved in these petitions.

(i) The petitioners and private respondents are posted as Deputy Commissioner in different districts of Uttar Pradesh in Commercial Tax Department, U.P. after they were promoted in the year 2014 based on seniority list dated 09.08.2012. Services of the petitioners as well as private respondents are governed under U.P. Sales Tax Service Rules, 1983 (hereinafter referred to as ‘Rules 1983’) as amended from time to time.

(ii) The petitioners are direct recruits to the post of Assistant Commissioner, Commercial Tax whereas private respondents are promotee officers, who were promoted from the post of Sales Tax Officer Grade-II. Post of Deputy Commissioner and above are to be filled up only by promotion. Nomenclature of the Sales Tax Department was changed as Trade Tax Department and, thereafter name was again changed as Commercial Tax Department.

(iii) In pursuance to the advertisement issued for holding selection for the Combined State Public Service Examination, 2005 by the Uttar Pradesh Public Service Commission, the petitioners were selected as per merit list prepared by the Commission. They joined the service on different dates in the year 2008-09. Private respondents who were holding post of Commercial Tax Officer were promoted under 50% quota to the post of Assistant Commissioner vide order dated 27.02.2009 and they joined the said post on the same day.

(iv) Final seniority list for the cadre of Assistant Commissioner Commercial Tax from Serial No. 173 to 2115 was issued on 09.08.2012, wherein the officers appointed directly and through promotion on the post of Assistant Commissioner in the recruitment year 2008-09 were placed in order of seniority as per the relevant Rules in the ratio of 1:1.

(v) The petitioners as well as respondent Nos. 3 to 11 were promoted on the post of Deputy Commissioner, Commercial Tax by means of a common order in the year 2014 based on seniority list dated 09.08.2012.

(vi) Petitioner No. 8 submitted representation dated 03.08.2019 against the seniority list dated 09.08.2012. Respondent No. 1 considered the representation and rejected the same vide impugned order dated 20.03.2020 stating that the seniority list dated 09.08.2012 was prepared in accordance with law.

3. RELEVANT STATUTORY PROVISIONS:

In order to regulate the services of officers of Sales Tax Department, service rules named as U.P. Sales Tax Service Rules, 1983 were promulgated which consisted of three posts namely, Sales Tax Officer, Assistant Commissioner and Deputy Commissioner.

(i) Rule 5 of Rules, 1983 provides for source of recruitment to the various categories of post in the services. For convenience Rule 5 is extracted hereunder:

“5. Source of Recruitment:

(1) Recruitment to the various categories of posts in the Service shall be made from the sources indicated against each:

(a) Sales Tax Officer - (i) By direct recruitment on the result of competitive examination conducted by the Commission.

(ii) By promotion, through the Commission, from amongst permanent Sales Tax Officers, Grade-II who have put in not less than seven years' service as such.

Note - A combined competitive examination may be held by the Commission for recruitment to the U.P. Civil (Executive) Service and any other State Services including this Service.

(b) Assistant Com