OFFICE OF THE

DEPUTY COMMISSIONER (CT)

KAKINADA DIVISION

Rc.No. E1/1501/03 Dt: 30.10.2004

SHOW CAUSE NOTICE

Sub:- P.S.C.T.Dept., - Zone-II Kakinada Division Seniority list of ACTOs – from 1992-93 to 1999- 2000 – Show Cause Notice – Issued – Objections – Called for – Regarding.

Ref:- 1. Hon’ble A.P.High Court judgement dt: 9-4-2001 in

W.P.Nos.24335/99 & 14538/2000.

2. Seniority list of ACTO published in AP Extra-ordinary Gazette

Nos.430 & 431, dt: 17-9-2002.

3. Judgement of Hon’ble APAT dt: 22-7-2003 in O.A.No.

6022/2001 and batch.

  1. Seniority list of ACTOs of all Nodal Divisions published in A.P.Gazette No.119, dt: 25-3-2004.
  2. DC(CT), Kakinada divn in Ref.in R.C No.E1/1501/2002. dt.15-6--2004
  3. CCT’s Prodgs.in Rc.No.DX1/1224/2004 dt. 27–10-2004.

*****

  1. In the first instance relating to finalisation of seniority list of ACTOs, the DR ACTOs of 1967 batch filed R.P.No.510/78 before the Hon’ble APAT contesting the fixation of the seniority of RPs/DRs. The Hon’ble APAT in its judgment of 19-2-81 issued certain guidelines for preparation of seniority lists. Though Government vide G.O.Ms.No.586 dated: 26-5-81 confirmed the Hon’ble APAT judgment, this could not be implemented due to litigation which prevailed till 1992. Thereafter, instructions to all the Nodal Deputy Commissioners were issued to prepare seniority lists of ACTOs for the period from 18-10-75 to 31-08-92. While the process of preparation of seniority lists in (9) Nodal Divisions was in progress, O.A.No.3055/92 and 4613/93 were filed before the Hon’ble APAT questioning the said process. The Hon’ble APAT in its orders dated: 21-11-94 held that the reorganization of (9) Nodal Divisions is not valid, but, only (6) or (6+1) zones should be organized in C.T.Department. Against this, SLP No.9518, was filed before the Hon’ble Supreme Court and Supreme Court suspended the orders of the Hon’ble APAT dt: 2-11-94 and confirmed the reorganization into (9) Nodal divisions, consistent with its earlier orders in 1990. Again the APAT in O.A.No.6031/94 directed to prepare tentative zone-wise seniority lists of ACTOs for making adhoc promotions in the higher cadres. Therefore, instructions were issued on 11-8-95 to the Nodal Deputy Commissioners (CT) to prepare seniority lists as per the guidelines issued by the Hon’ble APAT in 510/78. As such, the Nodal Deputy Commissioners (CT) have prepared seniority lists of ACTOs for the period from 18-10-75 to 31-8-1992 in the year 1995. Show cause Notices were issued to all concerned persons. Aggrieved by the said show cause notices, several O.As were filed before the APAT. The Hon’ble APAT in its order dated 26-4-96 in O.A.No.669/95 and batch directed that seniority lists should contain certain points as observed by the Government, in Memo No.3671/CT.I(2)/96-5, dated; 3-7-1997. Certain guidelines for preparations of seniority lists have been issued and accordingly, the Nodal Deputy Commissioners have prepared and finalized seniority lists during the year 1997.
  1. Aggrieved by the above seniority lists prepared in the year 1997, various O.A.s were once again filed before the Hon’ble APAT. In certain O.As., APAT have issued interim orders. Due to non-finalisation of seniority lists and due to pendency of cases before the Court, the department had no option but to resort to in-charge arrangements to the cadre of ACTOs, DCTOs and CTOs for smooth functioning of the Department w.e.f. September’1993. Further, as per the orders of the APAT in O.A.No.6621/96 dt: 14-3-1997, all the in-charge arrangements that were made earlier were limited to temporary promotions when the individuals were falling within the zone of consideration as per rules.
  1. Once again, the Hon’ble APAT, in its orders dated: 20-7-99 in O.A.No.5939/98 and O.A.no.7537/98 directed to make adhoc promotions to the post of CTOs basing on the list of DCTOs finalized, on 01-05-97. The operative portion of the orders of the Hon’ble APAT is as follows:-

“ We draw the attention to the Presidential Order. According to order 11 of G.O.Ms.No.728 G.A (SPF-A) Dept., dt: 01-11-75, the benefit of employment and promotional opportunities in posts outside the purview of the Presidential Order should be shared equitably among different local cadres. As the post of CTO is a state wide cadre post and outside the purview of the Presidential Order we feel the provisions of this Rule should be followed while filling up the post of CTO. It is seen that in this case all the persons were appointed on the same date i.e., 1-5-97 but the listing of the appointed persons has been done on the basis of Rule 33 (a) of the General Rules read with the provisions of G.O.Ms.No.607 dt: 6-11-92. Virtually, the very listing indicates the inter-se-seniority of the persons in the Zone in the category of DCTOs. But promotions to the cadre of CTOs have to be done by merging the zonal seniority in the category of DCTOs. Since all the persons have been appointed on 01-5-97, this may be difficult to follow. But the provisions of the Presidential Order quoted above would come to the rescue. According to these provisions, posts in non-local cadres which includes State-wide cadre as CTO should be equitably distributed to the various zones filling up persons from the zonal cadre. We, thus make it amply clear that while making adhoc promotions to the posts of CTOs the seniority of the DCTOs in the feeder category alone is to be taken into consideration as finalized as on 01-5-97 and the same is to be taken as the criterion for promotion to the post of CTO and it must necessarily be based on the provisions of the Presidential Order quoted above. We further make it clear that the seniority in the cadre of ACTO which is the feeder category for the post of DCTO cannot become as the criterion for the post of CTO. The respondents are directed to prepare a combined seniority list of DCTOs of all the zones eligible for promotion to the post of CTO which is a State-wide post and review the adhoc promotions made or to be made under these orders. Any promotions already made to the category of CTOs should be regulated on the basis mentioned above. Preparation and finalization of seniority in the category of DCTOs and review of promotions to the cadre of CTOs should be completed within a period of four months form the date of receipt of copy of this order”

4.Aggrieved by the orders of APAT, certain individuals have filed W.P.No.24335/99 and 14538/2000, before the Hon’ble A.P. High Court. The Hon’ble A.P. High Court in its orders dt: 9-4-2001 modified the said orders of the Hon’be APAT and directed as under:

1.Final seniority list in the posts of DCTOs be made on the basis of final seniority of ACTOs after interspersing them at Zonal level;

2.By interspersing the seniority of DCTOs at State level, the final seniority list of CTOs has to be prepared;

3.At each stage of ACTOs and DCTOs it is Rule 33 (a) of the A.P.State and Sub-ordinate Service Rules, which will govern the aspect of seniority, and

4. While considering the final seniority list of CTOs and consequential promotions, it is the seniority based upon Rule 33 (a) referred to above which will govern and not the temporary promotions in the said cadre of DCTOs.

5. The observations of the Hon’ble High Court at pare 6 of the judgment dated 9-4-2002 in W.P. referred to above, are extracted here under:

“ while there is no direct recruitment to DCTO post, for ACTO post there are two channels of recruitments; one is by direct recruitment and another by promotion. Integration has to be done division-wise at the stage of ACTO between the direct recruits and promotees in the ratio of 2:3 and coming to DCTO, integration has to be done at Zonal level and then to CTO at State level. Process is long, but that has to be done; however, the same has not been done. Further, to the post of DCTO, apart from promotion from ACTO, every 15th vacancy is reserved for a Superintendent from the Office of the Commissioner of Commercial Taxes. There also integration is necessary. This facts situation is not in dispute. The Tribunal also had felt the same and directed to prepare the respective seniority lists for the purpose of preparation of final seniority in the cadre of CTOs. But, one fallacy committed by the Tribunal was to reckon the date of seniority of DCTOs as 01-05-1997 ignoring the fact that the said date cannot be reckoned for the purpose of seniority, as, that was only temporary promotion, which can never be counted for the purpose of final seniority”.

As such, the Nodal Deputy Commissioners were directed to prepare seniority lists of ACTO for the period from 75-76 to 91-92 in the light of the directions of the Hon’ble A.P.High Court. The Deputy Commissioners have accordingly prepared seniority lists. The lists so prepared were once again challenged in W.P.No.2736//2002 etc, before the Hon’ble A.P.High Court.

6. To ensure consistency in approach and to follow a uniform approach in accordance with directions of APAT/A.P.High Court/Supreme Court, Office of the Commissioner of Commercial Taxes prepared seniority of ACTOs for all the Nine divisions, and published show cause notices in June and July 2002. After analyzing the objections received and accepting some on merits, seniority list was finalized and published in Gazette Nos.430 & 431 dt: 17-9-2002.

  1. The said finalized seniority lists were however set aside by the APAT in O.A.No.6022/2001 and batch dt: 22-7-2003. In its latest order, the APAT issued detailed comprehensive guidelines for preparation of seniority lists of ACTOs. Accordingly, the seniority list of ACTOs in all (9) Nodal Divisions has noe been prepared following these comprehensive and detailed guidelines.

8.The relevant portion of these guidelines extracted from the APAT judgment is given below:-

1)Seniority of a member of service has to be fixed in terms of Rule 33 of the A.P.State and Subordinate Service Rules i.e., with reference to the date of appointment in accordance with the rules and not with reference to the date of confirmation (full membership) after taking action in terms of rules 25 and 29 of the A.P. State and Subordinate Service Rules by placing full members as a class above the approved probationers and probationers.

2)For counting seniority from the date of appointment, one should be appointed in accordance with the rules, for example-(a) he should have necessary qualifications and experience prescribed under the rules, (b) he should satisfy the rules of reservation if rule of reservation is applicable (c) he should have been appointed within the quota, prescribed, if any, under rules and (d) the procedure prescribed, if any, for such appointment. If a person does not satisfy any of the conditions prescribed under the rules at the time of appointment his seniority has to be counted not from the date of such appointment but from the date on which he satisfies the requirement of the rules.

3)In the case of appointment to the post of Asst.Commercial Tax Officer, where recruitment to service is both by direct recruitment and transfer, the quota meant for direct recruits/transferees should be arrived at on the following basis:-

a)In the case of direct recruits appoint prior to 08-03-83, they are entitled for appointment against 40% of substantive vacancies in the permanent cadre. After 08-03-1983 and before the new A.P.Commercial Tax Sub-ordinate Service Rules came into force, they are entitled not only for 40% of the substantive vacancies in permanent cadre but also for 40% of substantive vacancies arising in temporary posts in terms of explanation to Rules 6 of the APS & SS Rules. After A.P.Commercial Tax Sub-ordinate Service Rules’1990, came into force they are entitled for 4 vacancies in a cycle 10 vacancies which arises in the services.

b)In the case of transferees appointed prior to 08-03-1983 they are entitled for 60% of the vacancies in the permanent cadre and also all the vacancies that arises in temporary posts. After 08-03-1983 they are entitled for 60% of the vacancies in the permanent cadre, 60% of the substantive vacancies in temporary posts in terms of explanation to Rule 6 of General Rules posts which cannot be treated as substantive vacancies in terms of explanation to Rule 6 of the General Rules. It is however to be noted that when temporary posts are sanctioned for the first time all the vacancies that arise in those posts would be available for transferees. But if those posts are continued beyond one year certain percentage of substantive vacancies would not be available for transferees. Therefore, transferees could be said to be appointed within the quota only if he comes within the quota meant for a transferee not only in the first year of sanction of temporary posts but also within the quota meant for transferee if the post is continued beyond one year. After the A.P.Commercial Tax Sub-ordinate Service Rules, 1990 came into force, transferees would be entitled for 5 vacancies in a cycle of 10 (excluding vacancy meant for a city list candidates) which arise in the service.

4.The vacancies referred to above for the purpose of calculation of quota does not include stopgap or fortuitous or short time vacancies like leave vacancies etc.,

9. As per the above directions of the Hon’ble APAT, the Commissioner of Commercial Taxes prepared and finalized the seniority list of ACTOs for all 9 Nodal Divisions (Nodal division-wise and Zone-wise) for the period from 1975-76 to 1991-92 and published in A.P.Gazette vide reference 4th cited.

  1. In the process, the rank promotee ACTOs, mentioned in Annexure-I who were included and appointed in earlier panels could not find place in the seniority list finalized by the Commissioner of Commercial Taxes vide reference 4th cited, as they were occupying posts they were not eligible. Therefore, they have been relegated to subsequent panel years from 1992-93 onwards against the vacancies meant for them.
  1. Earlier, adhoc panels were drawn, up to the panel year 1991-92. From 1992 onwards due to non-finalization of seniority lists in lower cadre due to pendency of cases before the Hon’ble APAT the department had no option but to resort to in-charge arrangements to the cadre of ACTO,DCTO and CTO for smooth functioning of the department, with effect from September’1993. Further, as per the orders of the Hon’ble APAT dt” 14-3-1997 in OA..No.6618 of 1995, all the incharge arrangements that were made earlier were limited to temporary promotions when the individuals were falling within the Zone of consideration, as per rules.
  1. While ordering temporary promotions, the Deputy Commissioner (CT) Kakinada divn vide his orders dt: 12-6-97, specified that “the temporary promotions are subjected to the year-wise regular panels to be drawn by reviewing the temporary promotions now ordered”.
  1. Further, it is relevant to mention here that, the Government issued a clarificaton in case of CTOs, that, if clear vacancies meant for promotees are available, regularization of in-charge CTOs should be done with effect from the date of arising the clear vacancy meant for prmotees., subject to their seniority and eligibility, but not from 24-11-97 i.e., the date of temporary promotion. This stand is also adopted in respect of ACTOs.
  1. Further, the observations of the Hon’ble A.P.High Court in its judgement dt: 9-4-2001 in W.P.No.24335 of 1999 and 14538 of 2000 (also relevant to the present process) are as extracted here under:-

“ the Tribunal had felt the same and directed to prepare the respective seniority lists for the purpose of preparation of final seniority in the cadre of CTOs. But, one fallacy committed by the Tribunal was to reckon the date of seniority of DCTOs as 15-7-1997 ignoring the fact that the said date cannot be reckoned for the purpose of seniority, as, that was only temporary promotion, which can never be counted for the purpose of final seniority”.

  1. The above order of Hon’ble A.P.High Court is adopted for finalizing ACTOs seniority also. Therefore, the date of temporary promotion as ACTOs given to the in-charge ACTOs on 12-6-1997 cannot be reckoned for the purpose of seniority and they have to be placed against the clear vacancies meant for them, from the panel year1992-93 onwards whether or not they officiated in the higher capacity of ACTO.
  1. Therefore, year-wise vacancy position has been submitted to the Commissioner (CT) with a detailed proposal as per G.O.Ms.No.81 Rev (CT.I) Dept., dt: 3-2-1990 and G.O.Ms.No.1233 Rev (CT.I) Dept., dt: 4-12-1993 for approval of year wise panels form 1992-93 onwards. There are three channels of appointment to the post of ACTO governed APCT SS Rules I) Appointment by direct recruitment

II) Appointment by transfer from AP Ministerial Services by the eligible Senior Assistant/Senior Stenos/Senior Inspectors/Junior Assistants/Junior Typists and Junior Stenos (as the case may be) working in Offices of the Commercial Taxes Divisions and III) appointment by transfer from the eligible personnel of City List i.e., from the Office of the Commissioner of Commercial Taxes/STAT/Secratariat.

STATEMENT SHOWING THE VACANCY POSITION OF KAKINADA NODAL DIVISION

______

Panel year Total No.of Vacancies for Vacancies for

vacancies D.Rs RPs.

______

92-93 1679

93-94 41 16 25

94-95 16 7 9

95-96 16 6 10

96-97 10 4 6

97-98 8 3 5

98-99 6 3 3

99-00 5 2 3

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17. The Commissioner (CT) had approved year wise panels, in the reference 6th cited, strictly in accordance with the feeder category seniority, and communicated for the period from 1992-93 to 1999-2000 duly following 10 points cycle as envisaged in A.P.C.T.S.S. Rules and as per the directions of the Hon’ble A.P.A.T. needs judgment vide Ref.3rd cited. While approving the said panels the CCT has considered placement in respect of the persons who were relegated from earlier panel (as mentioned at Para No.11), 1992-93 panel onwards against the vacancies meant for their quota and respective category.

18.The seniority list of ACTOs, for the period from 1992-93 to 1999-2000 is prepared on the following lines.

  1. The present seniority list of ACTOs is made strictly as per the Hon’ble High Court and A.P.A.T. orders in W.P.No.24335/1999 and 14538/2000 dated 09-04-2001 and O.A.No.6062/2001 and batch dated 22-07-2003 (Strictly as per third phase) respectively and also in accordance with G.O.Ms.No.81, Rev.(CT-I) Dept., dated 03-02-1990 and G.O.Ms.No. 1233, Rev.(CT-I) Dept., dated 04-12-1993.
  1. The panel order has been maintained for OCs. In respect of carry forward vacancies of SCs/STs and city list candidates where quota is fixed, the individuals are advanced in these carry forward vacancies if they are fully qualified to hold the post as on that date. They are placed at the top of the panel, in the respective panel year. However, while reckoning seniority, they are placed at their respective places with in the panel year inter-se with other Rank promotees as per their date of joining in the compliance with the various court orders afore said. The date of officiation as in-charge ACTOs is adopted for the purpose of construing Rule 33(a), where date of officiation if prior to date of temporary promotion to the post of ACTOs. The temporary posts are made enmass in the year 1997. If temporary date of promotion is adopted for preparation of panels and date of joining is adopted as the criteria as per Rules 33(a) of General rulesthere will not be any eligible RPs available for preparation of panels from 1992-93 to 1996-97. Had the panels been drawn from 1992-93 as usual, then the Rank Promotees would have been, regularly, promoted in the vacancies meant for them. Thus, to ensure equity to rank promotees, the above procedure is adopted.
  1. The Direct recruitees, have been placed in the year, they have joined in the same rank order communicated by the A.P.P.S.C.
  1. While determining inter-se-seniority between DRs and RPs, date of joining of DRs was taken into consideration duly following Rule 33(a) of General Rules.
  1. The city list candidates have been appropriately placed in the respective panel year in which they were appointed by transfer following Rule 33(a).

As per F.R.-26 (aa), arrears shall not be payable for the notional duty period assigned as a result of revision of seniority position. But a pensioner will be entitled for the pensionery benefits.