TMI Blog1988 (11) TMI 353X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Class-1 (Recruitment) Rules, 1962 which came into force o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... forts 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 promoted and appointed to the post of Sales Tax Officers Class-I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 4 A to complete me narration of facts, we may reproduce relevant rules contained in the Maharashtra Sales Tax Officers Class-I (Recruitment) Rules, 1982 which came into force on October 15, 1982 :- 1. By promotion of a suitable Sales Tax Officer having not less than three years service as Sales Tax Officer, rendered prior to the 15th day of October, 1982 including service, if any, as Sales Tax Officer, Class-n, rendered after the 15th day of October, 1982, or 2. XXX xxx xxx 3. xxx xxx xxx 4. Appointment to the post by promotion and nomination shall be made in the ratio of 60:40 for the first three years and thereafter in the ratio of 50:50 5. xxx xxx xxx 6. xxx xxx xxx Then follows the amendment which was brought into force on 30th December, 1987 by inserting Rule 4A and providing that the said Rule shall be inserted and shall be deemed always to have been inserted. It reads as under :- 4A- Notwithstanding anything contained in rule 4, if in the opinion of the State Government, the exigencies of service so require, the Government may, in consultation with the Maharashtra Public Service Commission, wherever necessary, make appointments to the posts in relax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made a representation against the same on 30th March, 1994 but, however, no response was received from the Government of Maharashtra. Thereafter, another provisional seniority list as on Ist January, 1993 was published on 30th June, 1994 and the said seniority list was again made in violation of quota rule and the promotees were given seniority over the direct recruits reckoning their seniority from the date they were given the fortuitous appointments. The appellants believed that no purpose will be served by making representations against the provisional seniority list published on 30th June, 1994 because their earlier representations made against the final seniority list dated 29th December, 1993 remained unattended, they therefore, filed the present original petition before the Tribunal vindicating their grievances as regards these seniority lists, 10. It was contended before the Tribunal that the Government has prepared these seniority lists in total violation of the Rules (October 14, 1982) inasmuch as erroneoulsy construed rule 4A of the Rules; The promotions of promotees being contrary to the quota rule, the same could not be termed as regular promotions under rule 4A of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The contentions raised on behalf of the appellants are devoid of any merit and the original petition be dismissed. 12. The Tribunal after considering the rival contentions and on perusal of the government files rejected the original petition of the appellants holding that the decision of the Government to fill up the posts of Sales Tax Officers Class-I by promotions was not only conscious decision but it had a concurrence of MPSC. Rule 4A of the Rules having been made retrospectively applicable, the promotions of the promotees can not be faulted on any ground. Besides rule 7 of Seniority Rules empowers the government after consultation with the MPSC to relax rules in certain cases if it is satisfied that the operation of any of these rules causes or is likely to cause undue hardship to any government servant or class of government servants or that the relaxation is necessary in the public interest for the reasons recorded in writing, The Government had taken a conscious decision in terms of rule 7. After referring to the correspondence between the Finance Department and MPSC which commenced on 20th October, 1983 and ended with the tatter's approval for relaxing the quota ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned Senior Counsel appearing in support of this appeal, urged that the Tribunal has totally misconstrued rule 4A. According to learned counsel, the Rules provide a quota between the promotees and the direct recruits. It was, therefore, not permissible for the Government of Maharashtra to violate the quota rule and promote the departmental candidates even against the vacancies/posts reserved for direct recruits. In the absence of any material on record including the conscious decision of the Govemment to indicate that quota rule was broken down, any relaxation in quota rule would be without authority of law and illegal and no promotions could have been given to the departmental candidates under the pretext of exigencies of service. The promotions of 747 Sales tax Officers Class-II to the posts of Sales tax Officers Class-I were per se illegal and in violation of rules 4 and 4A. the Government files do not indicate any conscious decision having been taken by the Government in prior consultation with the MPSC while promoting the departmental candidates to the posts of Sales tax Officers Class-I between 1982 and 1986. He led much Stress on the communication of the MPSC resisting any r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing a conscious decision to relax quota rule. Any contrary view then the one taken by the Tribunal would cause great hardship to these respondents. He, therefore, prayed that the appeal be dismissed; 16. After careful consideration of the rival contentions and on going through the records produced before us, we are of the considered view that the impugned judgment of the Tribunal is unsustainable in law as well as on facts of the present case. 17. The Rules under consideration are framed by the Government of Maharashtra in exercise of its powers under Article 309 of the Constitution, of India and therefore, they are statutory rules holding the field. From the promotion orders of the private respondents, it leaves-no manner of doubt that they were promoted/ appointed as Sales Tax Officers Class-I between 1982 and 1986 under these Rules. Rule 4 provides that appointment to the said post by promotion and nomination shall be made in the ratio of 60:40 for the first three years and thereafter 50:50. The promotion orders of the private respondents on record unmistakably indicate that their promotions/ appointments were fortuitous or until further orders and some were on trial basis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th rule 4A. As stated earlier, the respondents were unable to point out from the records any order passed by the Government of Maharashtra regularising private respondents and if this be so, their appointments must be deemed to have been continued as fortuitous until further orders and on trial basis. Resultantly, this period of fortuitous service will have to be excluded in terms of second proviso to rule 4 of the Seniority Rules. 18. Coming to the interpretation of rule 4A, it is ho doubt true that the language used therein indicates that the said rule is made applicable retrospectively from the date when the Rules were made applicable w.e.f, October 10, 1982. Rule 4A opens with non-obstante clause and provides that if in the opinion of the State Government, the exigencies of service so require, the government may In consultation with the MPSC wherever necessary make appointments to the post in relaxation of the percentage prescribed in rule 4 of the Rules by promotion and nomination. The Tribunal held that the word may used in this rule is directory but in our considered view to give such a meaning would render the very object of consultation with the MPSC wherever necessar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rule would violate the very object of quota rule. 19. Coming to the next argument which weighed with the Tribunal, namely, that the relaxation of quota rule under rule 4A was necessitated due to service exigencies. It was sought to be justified on the premise that experienced officers were needed to man the cadre of the Sales Tax Officers Class-I. The Tribunal in its judgment has not considered the situation where quota rule is broken down because no such argument was advanced before it The argument before the Tribunal on behalf of the appellants was simple, namely, that the requirements of rule 4A were not complied with by the Government of Maharashtra while giving promotions to the departmental candidates/promotees as Sales Tax Officers Class-I. The Government could have resorted to the relaxation of quota rule in favour of the departmental candidates/promotees provided they had done so in consultation with the MPSC being a condition precedent under rule 4A and then made the appointments/promotions. From the correspondence between the Government of Maharashtra and MPSC , it is quite clear that the latter was resisting any such relaxation of quota rule and ultimately vide its l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellants did file their representation against the said seniority list on 30th March, 99 but, there was no response one way or the other from the Government of Maharashtra. Again, another provisional seniority list as on 1st January, 1993 was published on 13th June, 1994 and the said list was again prepared in violation of quota rule. It is true that the appellants did not file any representation against; this provisional seniority list because it was not in any way different than the one prepared on 29th December, 1993. Since, there was no purpose in filing further representation, the appellants approached the Tribunal for appropriate reliefs. Having regard to this background, we are of the firm opinion that the original petition of appellants could not have been branded as suffering from latches. The appellants did approach the Government of Maharashtra as well as the Tribunal vindicating their grievance as regards their placements in the seniority lists. 21. In fairness, we must refer to the submissions made before us by Mr. Nakace-respondent No. 10. The sum and substance of his argument was that the Government was justified in relaxing quota rule in favour of the promot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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