TaxTMI 
TaxTMI 
1988 (11) TMI 353
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....blished in 1991, 1993 and 1994. These seniority lists are in respect of Sales Tax Officers Class-I comprising of promotees arid direct recruits. The Sales Tax Department is an important department which is entrusted with the work of revenue collection of the Government of Maharashtra. The Sales Tax Department is headed by the Commissioner of Sales Tax as the Principal Enforcement Officer. The hierarchy of other officers in the Sales Tax Department which is relevant in the present appeal is as follows :- Additional Commissioner of Sales Tax. Deputy Commissioner of Sales Tax, Assistant Commissioner of Sales Tax, Sales Tax Officer Class-II, Senior Sales Tax Inspectors, and Sales Tax Inspectors. With a view to restructure the department, the Government of Maharashtra in 1977 accepted the Yardi Committee report and on the basis thereof, a new cadre of Sales Tax Officers Class-I was introduced in the hierarchy one step above the Sales Tax Officers Class-II and below the Assistant Commissioner of Sales Tax. The Government of Maharashtra accordingly in exercise of powers conferred by the proviso to Article 309 of the Constitution of India, framed the Maharashtra Sales Tax Officers....
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....ancies were earmarked for the respective quotas nor any efforts were made to advertise and fill in the posts by nomination. It is the case of the appellants which is also born Out from the various appointment/promotion orders of the promotees as Sales Tax Officers Class-I that their appointments were provisional and fortuitous and if this be so, the period during which they continued to work as such ought to have been excluded in terms of rule 3 (f). The seniority lists of Sales Tax Officers Class-I prepared under rule 4 of the Seniority Rules are unsustainable as they were prepared contrary to rule 3 (f) of the said Rules. Some of the appointment letters by way of illustrations placed on record and not disputed do indicate that the promotees were appointed as Sales Tax Officers Class-I on provisional, fortuitous, trial basis, until further orders and approval by the State Government Suffice it to refer to the promotional orders of Shri P.N. Vathode and others contained in office order dated 22nd November, 1983, issued by the Commissioner of Sales Tax, Maharashtra State, Bombay. The relevant portion thereof reads as under:- The following Sales Tax Officers Class-II are promot....
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.... "The above appointments by promotion of the Sales Tax Officer Class-II, to that of Sales Tax Officer Class-I, are fortuitous and until farther orders and after approval of the Government. S/Shri R.M. Patil, S.R. Kulkarni, G.B. Naik, M.D. Pore, R.K. Beedkar and K.S.P. Blaruah are promoted on trial basis." [Emphasis supplied] Thus, it is clear that 747 Sales Tax Officers Class-II came to be promoted as Class-1 Officers in violation of quota rule. 7. That the posts of Sales Tax Officers Class-1 were advertised for the first time in January, 1986 of which the results were declared in August, 1987 and pursuant thereto the appellants were appointed as Sales Tax Officers Class-I on 6th September, 1988. To demonstrate how the appointments were made in violation of quota rule between 1982 and 1994, it was pleaded on behalf of the appellants that the State Government had filled in 1118 posts out of which 956 by promotion and only 162 by direct recruits. 8. The Government of Maharashtra, in exercise of its powers under Article 309 of the Constitution, amended the Rules (October 19, 1982 ) by the Maharashtra Sales Tax Officers Class-I (Recruitment) (Amendment) Rules, 1987, By this am....
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....tical issue relating to the seniority list of the Sales Tax Inspectors was the subject matter of decision by the Tribunal wherein it was directed that the seniority of Sales Tax Inspectors be recast strictly in accordance with quota rule as provided under their Recruitment Rules. It was stated in the representation that the Recruitment Rules of Sales Tax Officers Class-I and the said judgment being of a competent Tribunal be followed while recasting the seniority list of me appellants as on Ist January, 1991. However, the representations filed on behalf of the appellants were rejected and the seniority list came to be finalised on Ist February, 1993. In the meantime, the third provisional seniority list as oh Ist January, 1992 of Sales Tax Officers Class-I was published on 26th April, 1993 wherein me quota rule was applied following the decision of the Tribunal in the matter of Sales Tax Inspectors and accordingly the direct recruits of 1988 batch were placed above some 22 promotees who were shown above the direct recruits in the earlier lists. However, while preparing the final seniority list dated 29th December, 1993, the government restored the 1991 position by allowing benefit ....
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....ith the service exigencies. Rule 4A being retrospective in operation, it will be deemed that these promotees were promoted as if this rule was in existence from October, 1982. Moreover, the State Government in consultation with the Maharashtra Public Service Commission ( hereinafter referred to as "MPSC") has relaxed the quota rule by inserting rule 4A in order to streamline the department with experienced hands to meet the service exigencies. The government had taken a conscious decision to promote the departmental candidates as Sales Tax Officers Class-I with a view to bring efficiency in the working and have effective machinery to collect the revenue. The private respondents also filed separate return and adopted the contentions raised on behalf of the Government of Maharashtra. In addition thereto, it was pleaded that they have been rightly promoted as Sales Tax Officers Class-I in accordance with law after consultation with MPSC. Any change in the seniority lists at this stage would adversely affect the efficiency in the department. Many of the senior officers by now earned further promotions and resultantly they will have to be reverted. Moreover, the appellants did not file ....
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....are factors to be remembered while deciding their O.A." The Tribunal then held that the Government did not make efforts to make appointments by nomination for more than three years. The first requisition of the Finance Department sent to the MPSC for selection of candidates by nomination was in 1986 and it was confined to only 50 posts though the requisition should have been for 166 posts in the ratio of 40 (60:40). The first batch of the appellants was selected in 1987 and their appointments as Sales tax Officers Class-I were made in September, 1988. The Tribunal then held that the Government had no intention to revert the promotees which was obvious from the fact that it sought the approval of MPSC in respect of these promotees though belatedly vide letter dated 20th October, 1983 and continued to do so even after MPSC refused to give its approval and ultimately it suggested amendment to the Rules by inserting rule 4A in the Rules relaxing the quota rule. The Tribunal also held that since the appellants did not challenge the seniority lists published on 11th December, 1991, 1st February, 1993 and 29th December, 1993 within time, it must follow that present action suffers from ....
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....he Sales Tax Officers Class-I from 1982 to 31st December, 1986." Relying upon this letter, Mr. Singhvi, submitted that the private respondents could not be said to have been regularised as Sales Tax Officers Class-I till 20th of March, 1989 and there is no order oh the record to show that the Government has in fact regularised the promotions /appointments of private respondents in prior consultation with the MPSC in terms of rule 4A. The impugned seniority lists prepared in violation of rule 3 (f) read with rule 4 of Seniority Rules (annexure -II) are unsustainable. Rule 4A of Rules cannot save such unsustainable seniority lists. 14. Mr. Nargolkar, learned Senior Counsel appearing for the State of Maharashtra, supported the judgment of the Tribunal and adopted the reasoning given in the impugned judgment. He urged that seniority lists are valid and be not disturbed at this point of time. 15. Mr. Nakage, the respondent No. 10 appearing in person sought to justify not only his promotion but also other similarly situated colleagues as Sales Tax Officer Class-I. According to him, the private respondents have acquired a right in the posts of Sales Tax Officers Class-I by virtue....
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....f his continuous service therein. Provided that, for the purpose of computing such service, any period of absence from the post, cadre or service, due to leave, deputation for training or otherwise or on foreign service or temporary officiation in any other post shall be taken into account, if the competent authority certifies that the Government servant concerned would have continued in the said post cadre or service during such period, had he not proceeded on leave or deputation or been appointed temporarily to such other post : Provided further that the service, if any, rendered by him as a result of a fortuitous appointment shall be excluded in computing the length of service and for the purpose of seniority he shall be deemed to have been appointed to the post or in the cadre or service on the date on which his regular appointment is made in accordance with file provisions of the relevant recruitment rules." In view of the aforesaid provisions, the question would be as to whether the period during which private respondents continued to hold the posts of Sales Tax Officers Class-I on fortuitous basis, until further orders and until approval by the Governmen....
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....shall" and, therefore, consultation is mandatory. It must, therefore, follow that the MPSC gave its approval to the relaxation vide its letter dated March 28, 1989 but by that time, several appointments of the departmental candidates on similar terms in the cadre of Sales Tax Officers Class-I were made exceeding quota rule; As far as the regularisation process is concerned, it is quite clear from the letter dated March 28, 1989 by the MPSC to the Secretary, Finance Department calling upon the latter to furnish the details about the availability of posts yearwise with confidential records thereof in order to enable the Commission to take the decision on the pending select list and to regularise the promotions of the Sales Tax Officers Class-I from 1982 to December 31, 1986. As stated earlier, the respondents did not produce any order regularising these private respondents. The appellants were appointed by nomination on or after September, 1988 and therefore, their placement in the seniority vis-a vis the promtees will have to be determined on the basis of date of regular appointment in the cadre excluding the period of fortuitous appointment Consequently, the impugned seniority list....
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.... list prepared as on Ist April 1987 could not have been challenged by the appellants because at that point of time, they were not born in the cadre. But, however, the subsequent provisional list as on Ist January, 1991 which was published on 20th January, 1992, the appellants did make their representation against the same on 23rd September, 1992. Along with the said representation, they also annexed a copy of the judgment dated 2nd January, 1992 rendered by the Tribunal giving certain directions in respect of seniority list of Sales Tax Inspectors to be recast strictly in accordance with the quota rule as provided under the Sales Tax Inspectors Recruitment Rules. These Rules are similar to the Rules in question. The said representation was rejected and the list was finalised on Ist February, 1993. The third provisional seniority list as on Ist January, 1992 of Sales Tax Officers Class-I was published on 26th January, 1993 wherein quota rule was applied and the direct recruits of 1988 batch were placed above some 22 promotees who were shown in the earlier seniority list as senior to them. However, while preparing the final seniority list dated 29th December, 1993, the position as re....