SHEO KUMAR SINGH, J. - (1.) By means of the aforesaid writ petitions filed under Article 226 of the Constitution of India, the petitioners have assailed the order dated 18.07.2016 passed by U.P. Government whereby the final seniority list for the cadre of Assistant Commissioner, Commercial Tax has been finalized and issued. Writ Petition Nos.19231 (SB) of 2016, 21520 (SB) of 2016, 20119 (SB) of 2016 and 18074 (SB) of 2016 have been filed for quashing the same seniority list i.e. 18.07.2016 with prayer to issue a writ, order or direction in the nature of mandamus commanding the respondents to prepare fresh seniority list in accordance with rules. While filing the Writ Petition No.15963 (SB) of 2016 (A.K. Rai and others v. State of U.P. and others), the petitioners have prayed for issue a writ, order or direction in the nature of mandamus directing the opposite parties to finalize gradation list/seniority list from serial no.2116 and onwards and to further hold departmental promotion for remaining 42 posts of Deputy Commissioner of the recruitment year 2015-2016. The list contains the officers of two categories mentioned in Rule 5(a) (i) and (ii) of the Uttar Pradesh Sales Tax Service Rules, 1983 (for short, 1983 Rules). The recruitment on the post of Assistant Commissioner, Commercial Tax is made by direct recruitment and by promotion from amongst Commercial Tax Officers and the quota as prescribed is 50% each. The petitioners of Writ Petition No.19231 (SB) of 2016 were recruited on the basis of combined State Subordinate Service Examination, 2007 on the basis of a competitive examination and were given appointment on the following dates:- JUDGEMENT_17_LAWS(ALL)5_2017_1.html
(2.) Respondent nos. 4 to 8 were promoted on the post of Assistant Commissioner, Commercial Tax from the post of Commercial Tax Officers vide order dated 28.07.2010. The service conditions for the post are governed by 1983 Rules. Nomenclature of the Sales Tax Officer Grade-I was changed to Trade Tax Officer Grade-I in the year 2002 and further in 2008 the nomenclature was again changed and re-named as Assistant Commissioner, Commercial Tax. By 4th amendment made in the rules in the year 2002 the words Sales Tax Officer/Commercial Tax Officer were substituted by the words Assistant Commissioner.
(3.) It would be appropriate to quote certain rules and provisions relating and governing the service conditions of the officers of the Commercial Tax Department. In exercise of the power conferred by the proviso to Article 309 of the Constitution of India the rules regulating recruitment and conditions of service of persons appointed to Uttar Pradesh Sales Tax Service were made vide Notification dated 24.12.1983, which defines as follows:- 2. Status of the Service. - The Uttar Pradesh Sales Tax Service is a State Service comprising Group A and Group B posts. 3. Definitions. - In these rules, unless there is anything repugnant in the subject or context: (a) "Appointing Authority" means the Governor of Uttar Pradesh; (b) "Assistant Commissioner" means an officer appointed as Assistant Commissioner, Sales Tax; (c) ........... (d) "Commission" means the Uttar Pradesh Public Service Commission; (e) ......... (f) ......... (g) ......... (h) ......... (i) ......... (j) "Member of the Service" means a person substantively appointed under these rules or the rules or orders in force prior to the commencement of these rules to a post in the cadre of the Service; (k) .......... (l) .......... (m) "Service" means the Uttar Pradesh Sales Tax Service; (n) "Substantive" appointment means an appointment, not being an ad hoc appointment, on a post in the cadre of the Service, made after selection in accordance with the rules and, if there are no rules, in accordance with the procedure prescribed for the time being by executive instructions issued by the Government; (o) "Year of recruitment" means a period of twelve months commencing from the first day of July of calendar year. 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, and (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 Commissioner. - By promotion from amongst permanent Sales Tax Officers who have put in not less than seven years' service as such. (c) Deputy Commissioner. - By promotion from amongst permanent Assistant Commissioners who have put in not less than seven years' service as such. (2) If suitable candidates are not available for promotion on the posts of Sales Tax Officer from the prescribed field of eligibility, the Governor may, in consultation with the Commission, extend the field of eligibility to the extent considered necessary. Part V Procedure for Recruitment 14. Determination of vacancies. - The appointing authority shall determine and intimate to the Commission the number of vacancies on the posts of Sales Tax Officer to be filled during the course of the year as also the number of vacancies to be reserved for candidates belonging to Scheduled Castes, Scheduled Tribes and other categories under Rule 6. 15. Procedure for direct recruitment on the posts of Sales Tax Officer. - (1) Applications for permission to appear in the competitive examination shall be called by the Commission in the prescribed form, which may be obtained from the Secretary to the Commission on payment, if any. (2) No candidate shall be admitted to the examination unless he holds a certificate of admission, issued by the Commission. (3) After the results of the written examination have been received and tabulated the Commission shall, having regard to the need for securing due representation of the candidates belonging to Scheduled Castes, Scheduled Tribes and other under Rule 6, summon for interview such number of candidates as, on the result of the written examination have come up to the standard fixed by the Commission in this respect. The marks awarded to each candidate at the interview shall be added to the marks obtained by him in the written examination. (4) The Commission shall prepare a list of candidates in order of their proficiency as disclosed by the aggregate of marks obtained by each candidate at the written examination and interview and recommend such number of candidates as they consider fit for appointment. If two or more candidates obtain equal marks in the aggregate, the name of the candidate obtaining higher marks in the written examination shall be placed higher in the list. The number of names in the lists shall be larger (but not larger by more than 25 per cent) than the number of vacancies. The Commission shall forward the list to the appointing authority. 16. Procedure for recruitment by promotion on the posts of Sales Tax Officer. - Selection to the posts of Sales Tax Officer by promotion shall be made on the basis of merit in accordance with the Uttar Pradesh Promotion by Selection in consultation with the Public Service Commission (Procedure) Rules, 1970, as amended from time to time. 17. Procedure for recruitment by promotion on the posts of Assistant Commissioner and Deputy Commissioner. - (1) For the purpose of recruitment by promotion to the posts of Assistant Commissioner and Deputy Commission there shall be constituted a selection committee consisting of - i. The Secretary (Chairman). ii. The Commissioner (Member). iii. The Secretary to Government in the Karmik Department (Member). (2) Recruitment by promotion shall be made on the basis of seniority subject to rejection of the unfit through the Selection Committee constituted under sub-rule (1). (3) The Secretary shall prepare a list of the eligible candidates in the order of their seniority and place it before the Selection Committee together with the gradation list, character rolls and other records pertaining to the candidates which may be considered relevant to the selection. (4) The Selection Committee shall consider the cases of the candidates with the help of their character rolls and other relevant records. If it considers necessary, it may interview the candidates also. (5) The Committee shall draw up a list of the selected candidates arranged in the order of their seniority on the post from which they have been selected and forward the same to the appointing authority. 18. Combined Select List. - If in any year of recruitment appointments are made both by direct recruitment and by promotion, a combined select list shall be prepared by taking the names of candidates from the relevant lists, in such manner that the prescribed percentage is maintained, the first name in the list being of the person appointed by promotion. 19. Appointment. - (1) Subject to the provisions of sub-rule (2) the appointing authority shall make appointments by taking the names of candidates in the order in which they stand in the lists prepared under Rules 15, 16, 17 or 18, as the case may be. (2) Where, in any year of recruitment appointments are to be made both by direct recruitment and by promotion, regular appointments shall not be made unless selections are made from both the sources and a combined list is prepared in accordance with Rule 18. (3) If more than one orders of appointment are issued in respect of any one selection, a combined order shall also be issued mentioning the names of the persons in order of seniority as determined in the selection or, as the case may be, as it stood in the cadre from which they are promoted. If the appointments are made both by direct recruitment and by promotion, names shall be arranged in accordance with the list prepared under Rule 18. (4) The appointing authority may make appointments in temporary or officiating capacity also from the list referred to in sub-rule (1). If no candidate borne on these lists is available, he may make appointments in such vacancies from amongst persons eligible for appointments under these rules. Such appointments shall not last for a period exceeding one year or beyond the next selection under these rules, whichever be earlier, and where the post is within the purview of the Commission, the provision of regulation 5(a) of the U.P. Public Service Commission (Limitation of Functions) Regulations, 1954 shall apply. 20. Probation. - (1) A person on appointment to a post in the Service in or against a permanent vacancy shall be placed on probation for a period of two years. (2) The appointing authority may, for reasons to be recorded, extent the period of probation in individual cases specifying the date up to which the extension is granted: Provided that, save in exception circumstances, the period of probation shall not be extended beyond one year and in no circumstances beyond two years. (3) If it appears to be appointing authority at any time during or at the end of the period of probation or extended period of probation that a probationer has not made sufficient use of his opportunities or has otherwise failed to give satisfaction he may be reverted to his substantive post, if any, and if he does not hold a lien on any post, his services may be dispensed with. (4) A probationer who is reverted or whose services are dispensed with under sub-rule (3) shall not be entitled to any compensation. (5) The appointing authority may allow continuous service rendered in an officiating or temporary capacity in a post included in the cadre or any other equivalent or higher post, to be taken into account for the purpose of computing the period of probation. 22. Seniority. - (1) Except as hereinafter provided, the seniority of persons in any category of posts shall be determined from the date of the order of substantive appointment and if two or more persons are appointed together, by the order in which their names are arranged in the appointment order: Provided that if the appointment order specifies a particular back date with effect from which a person is substantively appointed, that date will be deemed to be the date of order of substantive appointment and, in other cases, it will mean the date of issue of the order: Provided further that, if more than one orders of appointment are issued in respect of any one selection, the seniority shall be as mentioned in the combined order of appointment issued under sub-rule (3) of Rule 19. (2) The seniority inter se of persons appointed directly on the result of any one selection shall be the same as determined by the Commission: Provided that a candidate recruited directly may lose his seniority if he fails to join without valid reasons when vacancy is offered to him. The decision of the appointing authority as to the validity of reason shall be final. (3) The seniority inter se of persons appointed by promotion shall be the same as it was in the cadre from which they were promoted. 29. Regulation of other matters. - In regard to the matters not specifically covered by these rules or by special orders, persons appointed to the Service shall be governed by the rules, regulations and orders applicable generally to Government servants serving in connection with the affairs of the State. ;