TMI Blog2000 (1) TMI 1026X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 1997 is filed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctors 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 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 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 prom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 numbe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me 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 and was finalised 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 decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st 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 promotes have been promoted 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of 704 posts of Sales Tax Inspectors to be filled 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, it was contended on behalf of the appellants that some of the 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 porti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yees in the Sales Tax Department, Maharashtra State was (1) Clerk (2) Sales Tax Inspectors and (3) Selection Grade Inspectors. Prior to the said date the post of Clerk was divided into Junior Clerk and Senior Clerk. The posts of STIs are filled up 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regular vacancies. Respondents 2 to 36 who were absorbed from the Revenue Department in the Sales Tax Department in the cadre of Senior Clerk, were also promoted to the post of Sales Tax Inspectors in August, 1981. The total number of Clerks and Senior Clerks 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lacements in the seniority list of Clerks and Senior Clerks in the Sales Tax Department but, however, it cannot be ignored that such absorbed employees came to be promoted as STIs much after the respondent No. 1 and other similarly situated persons were promoted. As stated earlier, the first respondent and other similarly situated persons were promoted between 1976 and 1980 whereas respondent Nos. 2 to 36 were selected by the Select Committee and came to be promoted in the year 1981 and thereafter. The Government Resolution dated June 18,1980 specifically recites that the seniority of the absorbed employees should be fixed in the equated post i.e. in the present case in the cadre of Senior Clerk. The Resolution nowhere provides that seniority can have any effect while determining the seniority in the higher cadre of Sales Tax Inspector. The effect of the impugned provisional seniority list dated April 28, 1987 would be that the respondent Nos. 2 to 36 who were absorbed personnel and who were promoted as the Sales Tax Inspectors after 1981 would be senior to those STIs like the first respondent and other similarly situated persons who were promoted after selection prior to September ..... X X X X Extracts X X X X X X X X Extracts X X X X
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