TaxTMI 
TaxTMI 
2000 (1) TMI 1026
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....Appeal No. 7717 of 1994 is filed by the Maharashtra Vikrikar Karamchari Sangathan, the appellant (for short the Promotes) assailing the legality and correctness of the judgment and order dated 23rd March, 1994 passed by the Maharashtra Administrative Tribunal, Bombay Bench in Original Application No. 690-A of 1993 (for short O.A.). This O.A. was filed by the promotes challenging the correctness of the final seniority list notified and published on 28th December, 1992 and amended on 29th October, 1993. This seniority list of Sales Tax Inspectors came to be prepared as on 31st of December. 1987. To be more precise, the dispute relates to the fixation of seniority of promotes and direct recruits for the block 1971 to 31st December, 1987. The Maharashtra Administrative Tribunal, Bombay Bench (for short MAT) dismissed the O.A. principally on the ground that the contentions raised therein are barred by principles of res judicata as well as constructive res judicata. However, with a view to avoid the remand, in case the higher Courts hold that the O.A. is not barred by the principles of res judicata or constructive res judicata, the MAT disposed of the controversy raised in O.A. on merits....
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....ion for Sales Tax Inspector and who have been promoted to the posts of Sales Tax Inspectors are required to pass Part II of the Departmental Examination for Sales Tax Inspectors also, according to the rules made in that behalf, failing which they shall be liable to be reverted. The ratio of persons appointed by promotion as provided above and by nomination as provided below shall, as far as practicable, be 40:60. The ratio shall not apply to temporary vacancies not exceeding one year which may be filled by promotion. Such promotions shall, however, be treated as stop-gap promotions and will not entitle the promotes to seniority by virtue thereof. Note: In the period from the date on which these rules come into force to the date on which the results of the first Departmental Examination of Sales Tax Inspectors under the unified Departmental Examination Rules are declared, promotions made to the post of Sales Tax Inspector shall be purely provisional and persons so promoted shall be required to pass the prescribed Departmental Examination within the prescribed period from the date the Departme....
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.... of in the cadre of service on the date on which his regular appointment is made in accordance with the provisions of the relevant recruitment rules. (2) Notwithstanding anything- contained in sub rule (1): (a) the inter se seniority of direct recruits selected in one batch for appointment to any post, cadre or service, shall be determined according to their ranks in the order of preference arranged by the Commission, Selection Board or in the case of recruitment by nomination directly made by the competent authority, the said authority, as the case may be, if the appointment is taken up by the person recruited within thirty days from the date of issue of the order of appointment or within such extended period as the competent authority may in its discretion allow. (b) the inter se seniority of Government servants promoted from a Select List shall be in the same order in which their names appear in such Select List. If the select List is prepared in two parts, the first part, containing the names of those selected unconditionally and the second part containing the names....
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.... except in a case where the competent authority certifies that, it was not expedient/possible or practicable to make a regular appointment strictly in accordance with the ratio of recruitment as prescribed in the relevant recruitment rules, with the brief reason recorded therefore. 3.x x x 4. In Rule 6 of the principal rules, after the existing proviso, the following proviso shall be added, namely: Provided further that, appointment shall not be deemed to be fortuitous if the authority competent to make appointment certified while preparing the annual gradation list that the temporary appointment had to be made, as candidates for regular appointment by nomination or as the case may be, persons fit for promotion from the lower cadre, were not available at. all or in adequate numbers. 6. This is how the relevant rules were holding the field when the impugned seniority list as amended came to be published in the year 1992 and 1993. It is clear from the certificate of the Addl. Commissioner of Sales Tax dated 21st February, 1992 (Ex.K) that from 6th Sep....
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....constructive res judicata by virtue of the judgment dated 3rd September, 1992 rendered by MAT in T.P. No. 822 of 1991. The direct recruits, therefore, prayed that present O.A. has no substance and the same be dismissed, 7. It would be necessary to refer to the earlier proceedings which were finally disposed of by the MAT, Bombay Bench and this Court upheld the said judgment while dismissing the SLP filed by promotes/departmental candidates. 8. The first proceeding in point of time was filed by the promotes bearing Writ Petition No. 2742 of 1987 challenging the seniority list, of the STIs in Bombay High Court wherein the direct recruits were also arrayed as respondents. The Bombay High Court vide its judgment and order dated 23rd February, 1989 quashed the seniority list and directed the concerned authority to prepare a fresh seniority list. 9. Following the directions of the Bombay High Court in its order dated 23rd February, 1989, a fresh seniority list was prepared and issued on 12th April, 1989. The direct recruits were not satisfied with this seniority list prepared and issued on 12th April, 1989 as according to them, the same was prepared in contravention of the statu....
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.... dismissed the same as under: I.A. No. 1 for permission to file SLP is allowed. The SLP is dismissed on merits. 12. In view of the decision of the MAT dated 3rd September, 1992 and of SLP confirmed by this Court on 10th December, 1992, a fresh seniority list was issued on 28th December, 1992 and was finalised on 29th October, 1993. The appellants/ promotes who were aggrieved by the said seniority list filed O.A. No. 690-A of 1993 before the MAT, Bombay Bench. The direct recruits were also made parties to this O.A. MAT, Bombay Bench, vide its impugned judgment dated 23rd March 1994 dismissed the O.A. It is against this order passed by MAT, Bombay Bench, the appellants have filed this Civil Appeal No. 7717 of 1994, 13. The impugned judgment principally proceeded on the footing that the contentions raised by the appellants were barred by principles of res judicata in view of the earlier derision of the MAT, Bombay Bench rendered on 3rd September 1992 whereunder the seniority list dated April 12, 1989 came to be quashed. The MAT then directed concerned authority to prepare a fresh seniority list in terms of directions contained in its order dated September 3....
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.... respective years for administrative reasons as the Sales Tax Department could not be allowed to suffer because of non availability of direct recruits. This contention is based on the principle that quota rule was broken down and, therefore, the Government had to resort to departure from the quota rule due to administrative exigencies. If such promotions were given to the promotes they could not be said to be fortuitous/ad hoc/temporary or stop-gap arrangement. On this topic both the parties relied upon the Rules 1971, the Rules 1982 and various decisions of this Court. The MAT after analysing the relevant rules and the decisions of this Court came to the following conclusions: 1. It cannot be held that the quota rule has not been followed continuously for number of years. 2. 1971 quota Rule has not been broken down. 3. Inter se seniority is to be guided by quota rule. 4. It is reasonable to implement the principles of pushing down. 5. Promotions in excess of quota are liable to be fortuitous. 6. Promotions in excess of quota in the year of promotion w....
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....d by the Additional Commissioner, Sales Tax, vide his letter dated 12th April, 1989 is in accordance with the instructions issued by the Government vide Government letter dated 2nd September, 1989. Therefore, the Government will have to forthwith cancel the impugned seniority list published on 12th April, 1989 and to prepare a fresh seniority list of the Sales Tax Inspectors in accordance with the law. It is needless to say that the appointments made in excess of the quota will have to be treated as fortuitous. Therefore, the respondents are directed to revise the seniority list and republish it in accordance with the law laid down by the Supreme Court as well as the letter dated V1KRANT-1087/4 l/37/Administration-7 dated 2nd September, 1989 addressed to Additional Commissioner, Sales Tax, Bombay, within a period of six months, from the date of this order. 17. As stated earlier, promotes challenged this order in SLP bearing CC No. 18427 of 1992 and the same came to he dismissed on December 10, 1992. In view of the finality attained by the judgment and order dated September 8, 1992 passed by the MAT Bombay Bench, the Government issued a fresh seniority list on December 28, 1992 a....
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....e. 19. While construing the phrase "as far as practicable," in the manner suggested by the respondents, it must be indicated that serious efforts were made with all promptness on the part of the State to secure the hands to fill up the required number of vacancies from the open market. 20. This submission was also raised in Transfer Application No. 822 of 1991 and while construing the said expression, MAT Bombay Bench, referred to the judgment in N. K. Chauhan v. State of Gujarat [1977]1SCR1037 and held that having regard to the facts and circumstances of the case and in particular the inaction on the part of the State Government in recruiting the direct recruits during this block, it could not be said that the State in tune with the mandate of the rule had made serious efforts to secure the hands to fill up the required number of vacancies from the open market. The Tribunal in paragraph 7 has concluded: According to him between the period 6th September, 1971 to 31st December, 1987, 2561 posts of Sales Tax Inspectors have been filled, out of which only 335 posts have gone to direct recruits and the remaining 2226 have gone to promotes and thus 1202 promo....
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.... 23. It was then contended on behalf of the appellants that in the year 1988, the Recruitment Rules were amended and as per the amended rules, cases where appointments are not made strictly in accordance with the ratio of recruitment as prescribed in the Rules 1971, such appointments will not be fortuitous appointments If the competent authority certified that it was not expedient/possible or practicable to make a regular appointment strictly in accordance with the ratio. In support of this submission reliance was placed on the certificate dated 21st February, 1992 issued by the competent authority in terms of the amended rules. The legality and correctness of the said certificate, counsel urged cannot be challenged. The certificate reads thus: In accordance with the said Rules dated 23rd September, 1988, it is hereby certified that from 6th September, 1971 to 31st December, 1987, total 1750 posts of Sales Tax Inspector became vacant. Under the recruitment rules, 1050 posts, or direct recruit were required to be filled in according to the ratio of 60 : 40. However, during the said period only 346 direct recruits were available and they were appointed. Balance ....
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....spondents 3 and 4 in Transfer Petition No. 822 of 1991 were riot sued in a representative capacity on behalf of all the promotes. No leave under O. 1, Rule 8, C.P.C. was obtained by the petitioners therein (direct recruits). In view of this relevant circumstance, at the most, it would be an inter parts judgment and would not bind the appellants save and except the respondents Nos. 3 and 4. This submission was strongly opposed on behalf of the non-official respondents. It was contended by Mr. Singhvi, the learned senior counsel that the petitioners in T.P. Case No. 822 of 1991 sued the respondents Nos. 3 and 4 in a representative capacity and, therefore, the law laid down by the MAT Bombay Bench in Transfer Petition No. 822 of 1991 must bind all the promotes who are similarly situated. This contention raised on behalf of appellants was negatived by the MAT in its impugned judgment and held that the said Transfer Petition by the direct recruits was in the representative capacity. No such specific contention appears to have been taken up in the present civil appeal. We see no reason to doubt the findings of the Tribunal in this behalf which is supported by Mr. Singhvi. 26. Lastly, ....
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....23, 1989 passed by the Division Bench of the Bombay High Court in Writ Petition No. 2742 of 1987. This writ petition was filed by the first respondent-Vasant Krishnaji Chavan, the Sales Tax Inspector (for short 'STI') on behalf of himself and other similarly situated STIs who were promoted to the posts of STIs prior to September 1, 1980. To this writ petition. State of Maharashtra and the Commissioner of Sales Tax, Maharashtra State along with other 35 respondents were arrayed as respondents. The challenge in this writ petition was to the provisional seniority list of STIs as on April 1, 1984 issued by the Government of Maharashtra on April 28, 1987. It is this provisional seniority list which was quashed by the High Court by this impugned order and the State Government was directed to prepare a fresh seniority list of STIs in accordance with the directions contained therein. A few facts leading to the present proceedings are as under: Prior to April, 1974, the staffing pattern amongst Class III employees in the Sales Tax Department, Maharashtra State was (1) Clerk (2) Sales Tax Inspectors and (3) Selection Grade Inspectors. Prior to the said dat....
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....tion. 36 employees from the Revenue Department came to be absorbed in the Sales Tax Department in terms of the order dated December 12, 1980. The said order also recites that the seniority of the revenue staff in the post of absorption will be separately fixed from the date from which such persons were working regularly in the equated posts prior to their absorption for all purposes including promotions, confirmations, etc. These 36 employees who were absorbed in the Sales Tax Department were holding the posts of Senior Clerk/Aval Karkun, Aval Karkun, Entertainment Duty Inspectors etc. in the Revenue Department and since their scale was found to be equivalent to the Senior Clerk in the Sales Tax Department, they were absorbed in the cadre of Senior Clerk in the Sales Tax Department. These employees are the respondents at serial Nos. 2 to 36 in this appeal. The respondents herein (the writ petitioners) and other similarly situated clerks and senior clerks who were working in the Sales Tax Department were promoted on October 15,1976 onwards to the posts of STIs against regular vacancies. Respondents 2 to 36 who were absorbed from the Revenue Department in the Sales Tax Departme....
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....ommon seniority list of the Clerks/Senior Clerks of the Sales Tax Department as well as the absorbed employees from the Revenue Department. The promotions to the post of STIs be governed by the seniority subject to other rules, regulations and Government orders. The provisional seniority list prepared by the State of Maharashtra suffers from no infirmity and the writ petition be dismissed. The learned Division Bench of the Bombay High Court after considering the rival contentions found that the provisional seniority list published by the Government of Maharashtra on April 28, 1987 is contrary to law and the same cannot be sustained. The High Court opined that the post of Sales Tax Inspector being a selection post and unless the Select Committee finds the Senior Clerk suitable, no promotion to such selection post could be made. The first respondent and other similar situated persons were selected by the Select Committee and came to be promoted to the STIs from October 15, 1976 onwards. The absorbed employees from the Revenue Department might be entitled for appropriate placements in the seniority list of Clerks and Senior Clerks in the Sales Tax Department but, however, it cannot....