TaxTMI 
TaxTMI 
TaxTMI 
2000 (1) TMI 1026
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....e 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 too. 2. Civil Appeal No. 6316 of 199....
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....he 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 Departmental Examination rules come into force, failing which they shall be liable to be reverted: OR (b) by nomination, on the result of a competitive examination held by the Maharashtra Public Service Commission, from among candidates who- (i) possess a degree in Arts, Science, Commerce,....
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....he 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 of those selected provisionally. All persons included in the first part shall rank above those included in all second part. Provided that, if the order in which the names are arranged in the Select List is changed following a subsequent review of it, the seniority of the Government servants involved shall be rearranged and determined afresh in conformity with their revised ranks. (c) the seniority of a transferred Government servant vis-a-vis the Government servants in the posts, cadre of service to which he is transferred shall be determined by the competent authority with due regard to the class and pay scale of the post, cadre or service from which he is transferr....
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.... 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 September, 197 i to 31st December, 1987, total 1 750 posts of Sales Tax Inspector became vacant. Under the Recruitment Rules, 1050 posts for the direct recruits were required to be filled in accordance with the ratio of 60:40. However, during the said period, only 346 direct recruits were available and they were appointed. Balance of 704 posts of Sales Tax Inspector came to be filled by temporary promotions because no candidates were available for direct recruitment for the said posts. From this certificate, it is amply clear that between 6th of September, 1971 and 31st December, 1987, the quota rule was not observed and the departmental candidates came to be promoted as Sales Tax Inspectors beyond their prescribed quota of 40%. Obviously, these promotions were treated by the Government of Maharashtra as temporary promotions. The principal issue which needs to be considered in this appeal is how to determine the seniority amongst the promotes and direct recruits who were pr....
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....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 statutory Rules 1971, framed by the State of Maharashtra in the years 1971, 1982 and 1988. To vindicate their grievances in respect of their erroneous placement in the seniority list issued on 12th April, 1989, two direct recruits petitioned the State of Maharashtra bearing Writ Petit ion No. 4852 of 1989 to which some of the promotes were also impleaded as respondents. Some similarly situated promotes filed the intervention application which wan allowed. Writ Petition No. 4852 of 1989 war, then transferred to the MAT, Bombay Bench in view of the Constitution of the MAT. It came to be listed as T.P. No. 822 of 1991. The State of Maharashtra as well as the promotes filed their responses to the transferred petition. The State of Maharashtra pleaded that the seniority list Issued on 12th April, 1989 was in accordance with the statutory rules and the promotions given to the promotes in excess of their quota were required to be treated as fortuitous promotions and since they were not re....
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.... 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, 1992. The MAT also considered in its impugned judgment the merits of the claim set up by the appellants and while negating the same on merits issued certain directions contained in paragraph 50 thereof. The MAT gave the findings on merits in order to avoid the order of remand in the event the higher Court comes to the conclusion that the contentions raised by the appellants in O.A. No. 690-A of 1993 are not barred by res judicata or constructive res judicata. Before we deal with the rival contentions on merits, it would be appropriate to set out relevant contentions and the findings recorded thereof by the MAT, Bombay Bench in its judgment dated September 3, 1992 as to whether the contentions raised in the present proceedings are barred by res judicator/constructive res judicata. 14. The principle of res judicata is sought to be applied on the footing that the identical contentions were raised in Transfer Petition No. 822 of 1991 and, therefore, such contentions cannot be re-agitated in the present O.....
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.... Promotions in excess of quota in the year of promotion will not get seniority in that year. 7. promotes in excess of quota will get seniority in subsequent year when they can get place in their quota (Pushing down principle). 8. Year is taken as unit for deciding the quota. 16. The MAT while coming to the above conclusions noticed that (1) there was no material on record to indicate that the quota rule was broken down and, therefore, the promotions given to the promotes in excess of quota rule will have to be treated as regular promotions and not being fortuitous/ad hoc/temporary/stop-gap arrangement. The MAT also found that the Government had failed to show that despite their sincere efforts, they could not adhere to the quota rule because of non-availability of eligible candidates for direct recruitment. (2) The words as far as practicable appearing in Rule 2 of Rules 1971 could not be equated with impossible and for that the MAT had referred to the number of vacancies that fell to the share of direct recruits. It was noticed that during the period from 6th September, 1971 to 31st December, 1987, 1050 posts fell to the share of direct recruits as per the quota rule, but, ho....
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....nalised on October 29, 1993. In this seniority list, the promoters were pushed down below the direct recruits as per the directions contained in the judgment of the MAT dated September 3, 1992. It is this seniority list which was challenged by the appellants before the MAT Bombay Bench, in Original Application No. 690-A of 1993. The MAT Bombay Bench, vide its judgment and order dated 23rd March, 1994 dismissed the said O.A. 18. Mr. Ganguly, the learned senior counsel appearing in support of this appeal urged that the phrase used in Rule 2 as far as practicable proves beyond any pale of doubt that there is no fix quota between promo tees and nominees and the said explanation as far as practicable cannot be given a restrictive interpretation and it cannot be gainsaid that no definite quota exists between the promotes and nominees and any departure thereof would amount to breach of quota rule. In support of this submission, he drew support from the decision of this Court in Direct Recruit Class II Engineering Officers" Association v. State of Maharashtra [1990]2SCR900 , wherein the words as far as practicable has been interpreted as under (para 20 of AIR, Lab 1C): The other Im....
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....ed in excess of quota. The total percentage of direct recruitment would come hardly to 13% as against the 60% prescribed in Rule 2 of Maharashtra Sales Tax Inspectors (Recruitment) Rules, 1971. 21. In view of these findings, a similar contention sought to be raised in the present proceedings cannot be entertained and the Tribunal, in our opinion, has rightly negatived the said contention on the ground of res judicata. An equally unsustainable contention was raised on behalf of the appellant that the aforesaid finding is per incuriam and as such the principle of res judicata will i have no application. Reliance was placed on the decisions of this Court in Direct Recruit Class II Engineering Officers' Association v. State of Maharashtra [1990]2SCR900 , Municipal Corporation of Delhi v. Gurnam Kaur AIR1989SC38 and A.R. Antulay v. R.S. Nayak 1988CriLJ1661 . We wonder how this contention can be accepted in view of the specific finding recorded by the MAT in its judgment dated September 3, 1992 which is quoted herein above. This submission cannot be sustained and hence rejected. 22. It was then contended on behalf of the appellants that neither the recruitment Rules of 1971 nor the....
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....led in by temporary promotions because no candidates were available for direct recruitment for posts of Sales Tax Inspectors. (Emphasis supplied) 24. We fail to understand how, on the face of findings noted above, this certificate would advance the case of the appellants. Further the certificate recites that the balance of 704 posts of Sales Tax Inspectors "to be filled in by temporary promotions" because no candidates were available for direct recruitment for the post of Sales Tax Inspectors. On the contrary, this certificate unmistakably indicates that although it was issued on 21st February, 1992, the promotions given to the promotes in excess of their quota for the respective unit years were treated as temporary promotions. No document is brought to our notice to indicate that the Government of Maharashtra has ever taken any decision much less the conscious decision in accordance with law to treat the promotions of these promotes (in excess of the quota) on regular basis. In the absence of any such decision on the part of the Government, it would be wrong to assert that such promotions were on regular basis and not fortuitous/temporary/ad hoc or stop-gap arrangemen....
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....appellants have put in more than 17 years of service when few of the direct recruits were either schooling and/or not born in the cadre. If the appellants were to be pushed down, it will cause a great hardship to them. We are unable to subscribe to this contention because if there is patent violation of the quota rule, the result must follow and the appellants who remained in the office for all these years cannot take the advantage of this situation. This submission is, therefore, devoid of any substance. 27. Thus, we concur with the findings recorded by the MAT on the issue of res judicata and consequently, the O. A. No. 690-A of 1993 will have to be dismissed on this ground alone for the reasons recorded herein above. We accordingly do so. If this be GO, the findings of the MAT in the impugned judgment on merits and certain directions issued therein and in particular para 50 would be of no consequence. Accordingly, any such direction in the operative portion of the impugned judgment based on para 50 will be non est. Principle of pushing down will have to be adhered to so long as the Rules of 1971 and Rules of 1982 as interpreted by MAT and this Court hold the field. The seniorit....
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....p by promotion as well as nomination in equal ratio. Promotion to the STI from the cadre of Clerk was made from the suitable candidates on the basis of the certificate issued by the Select Committee about his suitability. The post of Sales Tax Inspector is a selection post. Earlier, the work of recovery of sale tax was entrusted to the Revenue Department of the Government of Maharashtra. The Government of Maharashtra vide their resolutions passed in 1976 and 1978 decided to transfer the said work to the Sales Tax Department and accordingly in the year 1980, they implemented the said decision. Resultantly, 462 posts in the Revenue Department for the recovery of sale tax dues were abolished and equal number of posts were created on the establishment of Sales Tax Department. A question arose as to how to equate these posts with various corresponding posts in the Sales Tax Department in terms of the Government resolution dated September 25, 1978. The posts were equated as under: The post of Aval Karkun/Senior Clerk in the service of Revenue Department was equated with the post of Senior Clerk In the Sales Tax Department as the scale for both these posts was identical i.e. Rs. 335-15....
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....rks working in the Sales Tax Department came to be promoted from October 15, 1976, were about 200 in number. The seniority list of the Senior Clerk of Sales Tax Department as on September 1, 1980 was prepared and published on May 15, 1982 by the Government of Maharashtra wherein respondents 2 to 36 herein were included. From the provisional seniority list so published, it appears that such of the Clerks/Senior Clerks working in the Sales Tax Department and promoted prior to September 1, 198O were not included in the seniority list. The Sales Tax Department issued a circular enclosing the list of persons in the Sales Tax Department who were promoted from the post of Senior Clerks between 1980 and 1982. From the material placed on record, it is noticed that the employees who were initially working in the Revenue Department and were absorbed in the Sales Tax Department were making representations to the State Government to reckon their seniority in the cadre of STIs by taking info account their service/seniority in the cadre of Senior Clerk in their parent department. The Government of Maharashtra, however, published the provisional seniority list on April 28, 1987 whereby respondent....