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CASE NO.:

Appeal (civil) 7717 of 1994

PETITIONER:

MAHARASHTRA VIKRIKAR KARAMCHARI SANGATHAN

RESPONDENT:

STATE OF MAHARASHTRA AND ANR.

DATE OF JUDGMENT: 12/01/2000

BENCH:

S.P. KURDUKAR & S.S.M. QUADRI

JUDGMENT:

JUDGMENT

2000 (1) SCR 166

The Judgment of the Court was delivered by

S.P. KURDUKAR, J. Civil Appeal No, 7717 Of 1994.

This is a third round of litigation whereby a challenge to the seniority

list of the Sales Tax Inspectors in the Sales Tax Department, Maharashtra,

was made by promotees/departmental candidates (for short 'the promotees)

against the direct recruits in respect of their placements in the seniority

list. These two civil appeals in strict sense cannot be said to be

connected involving identical questions of inter se seniority save and

except that they relate to the fixation of seniority of the Sales Tax

Inspectors in their cadre in the Sales Tax Department of Maharashtra. Civil

Appeal No. 7717 of 1994 is filed by the Maharashtra Vikrikar Karamchari

Sangathan, the appellant (for short 'the promotees') assailing the legality

and correct-ness of the judgment and order dated 23rd March, 1994 passed by

the Maharashtra Administrative Tribunal, Bombay Bench in Original Applica-

tion No. 690-A of 1993 (for short 'O.A.')- This O.A. was filed by the

promotees 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 promotees and direct recruits for the block 1991 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 by the State of Maharashtra

impugning the judgment and order dated 23rd February, 1989 rendered by the

High Court of Bombay in Writ Petition No. 2742 of 1987. The dispute in this

civil appeal pertains to the determination of seniority of Sales Tax

Inspectors who were promoted (on absorption) from two different sources,

namely, Revenue Department and Sales Tax Department, Bombay. The dispute

thus in this civil appeal is confined to the inter-se seniority of

promotees from these two sources.

3, We may first deal with Civil Appeal No. 7717 of 1994. The facts which

are necessary for the disposal of the appeal may be stated briefly as under

:-

Prior to 6th September, 1971, the recruitment to the posts of Sales Tax

Inspectors (for short 'STIs') was made through three sources, (1) by

promotion from clerks, (2) by transfer from other departments and (3) by

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direct recruitment Till this time, no quota was prescribed for these three

different sources of recruitment. The seniority of all these three sets of

STIs was determined pursuant to the general provisions relating to

seniority contained in the government resolution dated July 29,1963.

4. For the first time, the State Government in exercise of powers

conferred by provisions of Article 309 of the Constitution of India, framed

the rules called Maharashtra Sales Tax Inspectors Recruitment Rules, 1971

(for short 'Rules 1971') which came into force w.e.f. September 6, 1971.

Suffice is to refer to Rule 2 thereof. It deals with the appointments to

the posts of Sales Tax Inspectors from two sources, namely direct recruits

and by promotion in the ratio of 60:40 as far as practicable. (Emphasis

sup-plied).

Rule 2 reads thus :-

2. Appointment to the posts of Sales Tax Inspectors shall be made either :

(a) by promotion of suitable clerks in the Sales Tax Depart-ment, who have

passed at least Part ! of the Departmental Ex-amination prescribed for the

Sales Tax Inspector or for the Higher Clerical staff in the Sales Tax

Department or who have been exempted from passing the Departmental

Examination prescribed for Sales Tax Inspectors or for the High Clerical

Staff.

Provided that the Clerks who have passed Part I of the Departmental

Examination 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 Inspector 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 promo-tions shall, however, be treated as

stopgap promotions and will not entitle the promotees 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 Departmen-tal 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 :

(b) by nomination, on the result of a competitive examination held by the

Maharashtra Public Service Commission, from among can-didates who -

(i) possess a degree in Arts, Science, Commerce, Law or Agriculture of a

recognised University or any recognised equivalent qualifications;

and

(ii) have attained the age of 18 years and have not attained the age of 24

years, on the first day of the month immediately following the month in

which the posts are advertised by the Commission;

Provided that the upper age limit shall be relaxed upto 30 years in the

case of persons serving in the Sales Tax Department.

Thereafter, the State of Maharashtra in exercise of powers conferred under

Article 309 of the Constitution of India framed the Rules for regulating

the seniority amongst government employees. The said Rules were called

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Maharashtra Civil Services (Regulation of Seniority) Rules, 1982 (for short

'Rules 1982'). These rules came into force w.e.f. June 21, 1982, Rule 4 is

relevant in the present controversy and it reads thus :

"4. General Principles of Seniority : (1) Subject to the other provisions

of these rules, the seniority of a Government servant in any post, cadre or

service shall ordinarily be determined on the length of his continuous

service there.

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

certified 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 purposes of seniority he shall be deemed to have been

appointed to the post 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 of those selected provisionally. AH 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 re-arranged and determined afresh in

conformity with their revised ranks.

(c) the seniority of a transferred Government servant vis-a-vis the

Government servant in the posts, cadre or 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

transferred, the length of his service therein and the circumstances

leading to his transfer.

(3) Where the dates of appointment in posts, cadre or service of any two

or more persons determined after assigning the deemed dates, if necessary,

are identical the person senior in age shall be considered as senior for

the purpose of deter-mining the seniority."

Rule 3 contains several definitions and we are concerned with for a defini-

tions.

3(D)"Deemed date" means the date assigned to a Government servant in

accordance with the provisions of Rub 5;

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3(E) "Direct recruit" means, in relation to any post, cadre or service, a

person appointed by nomination thereto;

3(F) "fortuitous appointment' means a temporary appointment made pending a

regular appointment in accordance with the provisions of the relevant

recruitment rules;

3(H)Promotee" means, In relation to any post, cadre or service, a

Government servant appointed thereto by promotion from a lower post, cadre

or service;

5, The State of Maharashtra again in exercise of its powers conferred by

Article 309 of the Constitution of India carried out the amendments to the

Rules 1982, We may reproduce the relevant amendments to Rules 4 and 6 which

read as under :

"2, in Rule 4 of the Maharashtra Civil Services (Regulation of Seniority)

Rules, 1982 (hereinafter referred to as "the principle rules", in sub-rule

(1) in the second proviso, after the words, ''a fortuitous appointment" the

following shall be inserted, namely :-

"except in a case where the competent authority certifies that, it was not

expedient/possible or practicable to make a regular ap-pointment strictly

in accordance with the ratio of recruitment as prescribed in the relevant

recruitment rules, with the brief reason recorded therefor."

3. xxx xxx xxx

4. In Rule 6 of the principle 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 September, 1971 to 31st

December, 1987, total 1750 posts of Sales Tax Inspectors 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 Inspectors 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 principle issue which needs to be considered

in this appeal is how to determine the seniority amongst the promotees and

direct recruits who were promoted and appointed as STIs during this block.

The contention raised on behalf of the promotees (appellants) is that the

quota rule was broken down and as a result thereof, the promotees were

required to be appointed in view of the exigencies of service and if so

appointed, their promotions cannot be termed as for-tuitous/temporary/ad

hoc and that they will be entitled to earn the seniority and placement in

the impugned seniority list from the date they were so promoted and working

as STIs. As against this, the contention raised on behalf of the direct

recruits was that the promotees who were promoted/appointed in the

vacancies falling in the quota of direct recruits (60%), such promotions of

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the promotees were fortuitous in excess of their quota and notwithstanding

that they were so appointed and working as STIs in the vacancies reserved

for direct recruits as per the quota rule, they cannot get the seniority

from the date of promotion or officiation and that they will get their

placement in the seniority list in accordance with their quota i.e. 40% and

until they are accommodated in their quota (40%) as regular promotees,

their date of promotion or officiation will not be counted for the purposes

of fixing their seniority vis-a-vis direct recruits. The quota rule was

never broken down. The direct recruits further prayed that the present O.A.

is barred by principles of res judicata as also the 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 promotees/departmental

candidates.

8. The first proceeding in point of time was filed by the promotees

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 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 Petition No. 4852 of 1989 to which some of the

promotees were also impleaded as respondents. Some similarly situated

promotees filed the intervention application which was allowed. Writ Peti-

tion No. 4852 of 1989 was 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 promotees 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 promotees in excess of

their quota were required to be treated as fortuitous promotions and since

they were not regularly appointed as STIs, they will be pushed down below

the direct recruits for the respective unit years of appointments in

accordance with quota rule. According to the State of Maharashtra, the

promotions given to the promotees in excess of quota were temporary/ad hoc

and or stop-gap arrangement without reckoning the period of their

officiation as STIs for the purposes of fixing their seniority,

10, The promotees strongly relied upon circular issued by the govern-ment

on 2nd September, 1989 regarding the seniority of the Sales Tax Inspectors

with reference to the rules and principles of seniority between the

promotees and direct recruits. In addition, they also relied upon a

certificate dated 21st February, 1992 issued by the Government under the

amended seniority rules declaring promotees in excess of quota as regular

promotees. There is a dispute as regards the correct reading and inter-

pretation of this certificate dated 21st February, 1992.

11. After hearing the parties, the MAT by its detailed reasoned order dated

3rd September, 1992 quashed the seniority list dated 12th April, 1989 after

setting/concluding the issues and directed the concerned authority to

prepare a fresh seniority list in terms of its order as also in accordance

with the rules notified from time to time. The promotees moved this Court

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in SLP (c) ...... (CC No, 18427/92), but, however, this Court on 10th

December, 1992 dismissed the same as under :-

"IA 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 on

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/promotees 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 dismissing the O.A. It is against

this order passed by MAT, Bombay Bench, the appellants have filed this CM

Appeal No. 7717 of 1994.

13. The impugned judgment principally proceeded on the footing that the

contentions raised by the appellants were barred by principle of res

judicata in view of the earlier decision 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 para-graph 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- judicata/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

QA. It may be true that the appellants have got a fresh cause of action

because the seniority list was prepared in 1993 by following the decision

in Transfer Petition Case No. 822 of 1991 but it will not alter the

situation in view of the fact that identical contentions/issues were sought

to be re-agitated in O.A. No. 690-A of 1993. All these contentions/issues

were concluded not only by the MAT Bombay Bench, but by this Court also in

SLP (C) No.......(CC No. 18427 of 1992). Certainly findings on such issues

must operate as res judicata in the present proceedings otherwise the very

rule of res judicata will be defeated

15. As stated earlier, Transfer Application No. 822 of 1991 (Writ Petition

No. 4852 of 1989) was filed by two direct recruits against the State of

Maharashtra, the Commissioner of Sales Tax and Rajak Daud Mapari who was a

promotee. To this O.A., four more promotees got themselves impleaded as

interveners and filed their counter affidavit opposing the said T.P. The

contention raised on behalf of direct recruits was that the promo-tions

given to the promotees in excess of their quota as laid down in the Rules

1971 be treated as fortuitous beyond their prescribed quota. The appellants

contended that since direct recruits were not adequately avail-able for

appointments in terms of the quota rule, the promotions were required to be

given during the 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

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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 promotees 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 will aot get

seniority in that year.

7. Promotees 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 coining 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 promotees 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, however, only 346 direct

recruits were appointed. Except for the year when recruitment was not

permitted by the government for the rest of the years either the

requisitions were not sent on time or the number of candidates for direct

recruits was restricted by the MPSC, For some years, no requisitions were

sent to MPSC. (3) No material was produced on record to indicate that

govern-ment ever took a conscious decision to deviate from the quota rule

as it was broken down and, therefore, promotees were required to be

promoted in excess of their quota. The number of posts for direct recruits

falling vacant were 704 for the said block. (4) The Government had taken no

active steps in the direction of direct recruitment. The promotions given

to the promotees in excess of their quota were either fortuitous/fid

hoc/tem-porary or stop-gap arrangement and, therefore, notwithstanding that

such promotees were officiating for long period, they will have to be

pushed down in the seniority list below the direct recruits for the

respective year/s of recruitment.

Consistent with these findings, the MAT concluded thus :

"It has not been explained by the respondents whether the seniority list

published 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 soy that

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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 No. VIKRANT -1087/41/87/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, promotees challenged this order in SLP bearing CC

No. 18427 of 1992 and the same carne to be dismissed on December 10, 1992.

In view of the finality attained by the judgment and order dated September

3, 1992 passed by the MAT Bombay Bench, the Government issued a fresh

seniority list on December 28, 1992 which was finalised on October 29,

1993. In this seniority list, the promotees were pushed down below the

direct recruits as per the directions contained in the judgement 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 judg-ment 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 promotees 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 promotees 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 and Others,

[1990] 2 SCC 715, wherein the words "as far as practicable" have been

interpreted as under :-

"The other important feature was that the proviso fixing the ratio, far

from being imperative, permitted the State Government to exercise its

discretion according to the demand of the exigencies, by using the

expression "as far as practicable". The case of the appellants is that the

said expression was inserted in the proviso with the object of avoiding

fractions in arithmetical calculations of number of posts available to the

two groups, and for no other purpose. We do not see any reason to so

restrict the scope and meaning of the expression "as far as practicable". A

similar expres-sion in identical terms used in certain other rules came up

for consideration in N.K. Chauhan v. State of Gujarat and it was held that

if it became non-feasible and impracticable for the State to fill up the

requisite quota by direct recruits after making a serious efforts to do so,

it was free to fill the posts by promotions of suitable hands, if the

filling up of the vacancies was administratively neces-sary and could not

wait. Similar is the position here, and the Rule 1 of the 1960 Rules must

be held to be realistic and flexible, true to life rather than abstractly

absolute."

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 Petition 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, [1917] 1 SCC 308 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,

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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 promotees and thus 1202 promotees have been promoted in excess of

quota. The total percentage of direct recruitment would come hardly to 13%

as against the 60% described 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 prin-

ciple of res judicata will have no application. Reliance was placed on the

decision of this Court in Direct Recruit Class II Engineering Officers' As-

sociation v. State of Maharashtra and Others, [1990] 2 SCC 715, Municipal

Corporation of Delhi v. Gurmam Kaur, [1989] 1 SCC 101 and A.R. Antulay v.

R.S. Nayak and Another, [1988] 2 SCC 602. 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 seniority rules of 1982 provided for

carrying forward the vacancies falling in either category. In the absence

of such rule which specifically provide for carrying forward the vacancies

falling in either category, no such carry forward rule could be implied

either in Recruitment Rules or in the Seniority Rules. This contention need

hot detain us any longer because such a contention was available to the

appellants in the earlier proceedings, namely, Transfer Petition No, 822 of

1991 and the same was not put in. issue. That not having been done, it must

follow that such a contention is barred by principle of constructive res

judicata. Neither the contesting respondents nor the appellants ever raised

this contention at any stage of the proceedings in Transfer Petition No.

822 of 1991. It would, therefore, be too late to raise such a contention

when the seniority list has been finalised pursuant to the judgment of the

MAT Bombay Bench in Transfer Petition No. 822 of 1991. The reliance placed

on behalf of the appellants on the decision of this Court in Narender

Chadha and Others v. Union of India and Others, [1986] 2 SCC 157,

therefore, does not advance the case of the appellants.

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 Decem-ber, 1987, total 1750

posts of Sales Tax Inspectors became vacant. Under the recruitment rules,

1050 posts, for Direct recruits 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 finding 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

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"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 promotees 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

promotees (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 arrangement. This certificate, therefore, is of no

consequence. This certificate was issued on 21st February, 1992 when the

Transfer Petition No, 822 of 1991 was pending before the MAT when it

rendered its judgment on September 3, 1992. It does not appear that either

of the parties ever produced the same in the earlier proceedings. The

respon-dents were therefore justified in contending that this issue cannot

be agitated in the present proceedings as it is barred under the principle

of constructive res judicata. Even on merits of this certificate, we have

already indicated that the appellant cannot draw any support therefrom to

contend that the promotions were on regular basis. It was contended by Mr.

K.K. Singhvi, learned Senior Counsel appearing for the respondents that

this certificate was issued by the Addl. Commissioner of Sales Tax after

the service of notices in Transfer Petition No, 822 of 1991. Of course,

there is no prohibition/bar as such but, this would only indicate an

afterthought attempt to lend support to the appellants. This contention

must also stand rejected.

25. It was then contended by Mr. Ganguly that the respondents 3 and 4 in

Transfer Petition No. 822 of 1991 were not sued in a representative

capacity on behalf of all the promotees. No leave under Order 1 Rule 8 CPC

was obtained by the petitioners therein (direct recruits). In view of this

relevant circumstances, at the most, it would be an inter partis 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 1.991 sued the respondent 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

promotees 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, 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 so, 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 seniority of such pushed down STIs vis-a-vis the direct

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recruits appointed after 31st December, 1987 is left open as it was not the

subject matter of O.A. Consequently, challenge to the im-pugned seniority

lists issued on 28th December, 1992 and finalised on 29th October, 1993 as

on 31st December, 1987 must fail. We must make it clear that subject matter

of challenge before the MAT was in respect of im-pugned seniority list

issued on December 28, 1992 and final seniority list issued on October 29,

1993. It is expressly made clear that this judgment is confined to the

seniority list as on 31st December, 1987 and no more.

28. In view of the aforesaid discussion, we find no merit in this appeal

and the same is dismissed. In the circumstances of the case, parties are

directed to bear their own costs.

I.A. No. 7 of 1997 & I.A. No. 8 of 1998.

In view of our order in the main appeal, I.A. No. 7 of 1997 and I.A. No. 8

of 1998 are allowed.

Civil Appeal No. 6316 of 1997

This Civil Appeal by Special Leave is filed by the State of Maharashtra

challenging the legality and correctness of the judgment and order dated

February 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 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 Govern-ment 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. 335-15-500-20-580-

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BB-20-680.

Consistent with this Government Resolution, the employees in the Revenue

Department came to be absorbed in the Sales Tax Department permitting them

to exercise the option in this behalf. While determining the seniority of

such absorbed employees vis-a-vis the employees in the Sales Tax Department

working on the post of Senior Clerks, the Govern-ment of Maharashtra,

Finance Department by Resolution dated June 18, 1980 determined the norms

of fixation of the seniority and it reads thus :

"So far as terms and conditions regarding fixation of seniority are

concerned, the seniority of the revenue staff in the post of absorp-tion

should be fixed from the date from which such persons are working regularly

in the equated posts prior to their absorption, for all purposes, including

promotions, confirmation, etc. The total length of service in the

equivalent posts in the Revenue Depart-ment in which a person was working

regularly prior to absorption should be taken into account for fixation of

seniority in the post of absorption."

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, Entertain-ment Duty Inspectors etc,

in the Revenue Department and since their scale was found to be equivalent

to the Senior Clerk in the Sales Tax Depart-ment, 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 from 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 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 Clerks 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, 1980 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 into 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 respondents 2 to 36 herein were included in

the said provisional seniority list. It is this provisional seniority list

which was challenged by the first respondent on behalf of himself and

similarly situated STIs who were promoted between 1976 and 1980. The first

respondent pleaded that on the date when the respondents 2 to 36 were

absorbed, the first respondent and other similarly situated persons were

already promoted as STIs and, therefore, the provisional seniority list was

not only erroneous but also violative of Ar-ticles 14 and 16 of the

Constitution.

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The appellants herein and also the respondents 2 to 36 contested the claim

of the first respondent on the ground that in view of the decision of the

Government to absorb the Senior Clerks/Aval Karkuns, Aval Karkuns,

Entertainment Duty Inspectors etc. on the equivalent posts in the cadre of

Senior Clerk in the Sales Tax Department, they are entitled to reckon their

seniority in the parent department as they were absorbed along with their

seniority. It was, therefore, necessary to prepare a common seniority list

of the Clerk/Senior Clerks of the Sales Tax Department as well as the ab-

sorbed employees from the Revenue Department. The promotions to the post of

STIs be governed by the seniority subject to other rifles, 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 con-sidering the

rival contentions found that the provisional seniority list pub-lished 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 similarly 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 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 respon-dent and other similarly situated persons

who were promoted after selec-tion prior to September, 1980. It was,

therefore, an error on the part of the Government to ignore the date of

selection and appointment of the first respondent and other similarly

situated employees to the post of STIs and treat them as junior to

respondent Nos. 2 to 36 who were selected sub-sequently. If such course is

followed, the action of the Government of Maharashtra and the Commissioner

of Sales Tax would be violative of Articles 14 and 16 of the Constitution.

The Division Bench accordingly set aside the impugned provisional seniority

list and directed the Government of Maharashtra to prepare fresh seniority

list in accordance with the directions contained in the impugned judgment.

Mr. Sathe, the learned Advocate appearing for the State of Maharashtra took

us through the impugned judgment as well as the relevant documents on

record but was unable to persuade us to take a different view than the one

taken by the High Court, As indicated earlier, the respondent No. 1 and

other similarly situated persons were selected by the Select Committee and

came to be promoted between 1976 and 1980 whereas the respondent Nos. 2 to

36 were selected by the Select Committee and came to be promoted in 1981

and thereafter. If this be so, in our opinion, the provisional seniority

list has been rightly quashed by the High Court. Thus, the appeal is devoid

of any substance.

In the result, the appeal to stand dismissed with costs.

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