S.P.KURDUKAR - (1.) LEAVE granted.
(2.) THE appellants are the direct recruits as Sales Tax Officers Class-I in the Sales Tax Department of the State of Maharashtra. THEy were appointed on or after 6/09/1988, after following the prescribed procedure laid down in the Maharashtra Sales Tax Officers Class-I (Recruitment) Rules, 1982 which came into force on 14/10/1982. Respondents 4 to 10 are the departmental promotees to the post of Sales Tax Officers Class-I who will be hereinafter referred to as "promotees". THE appellants seek to impinge the judgment and order dated 7/06/1997 passed by the Maharashtra Administrative Tribunal, Mumbai Bench, Mumbai (for short the Tribunal) On Original Application No. 126 of 1995 filed by them challenging the legality and correctness of certain seniority lists published in 1991, 1993 and 1994. THEse seniority lists are in respect of Sales Tax Officers Class-I comprising of promotees and 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-I (Recruitment) Rules, 1982 which came into force on 1/04/1982. The said Recruitment Rules, inter alia, provided the mode and manner of recruitment to the post of Sales Tax Officers Class-I. Rule 4 thereof provided that the 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. On 21/06/1982, the Maharashtra Services (Regulation of Seniority) Rules, 1982 (for short 'Seniority Rules') were framed providing the eligibility criteria which is not the subject matter of present controversy. Under the said Rules, fortuitous appointment is defined in Rule 3(f) whereas Rule 4 sets out the general principles of seniority. It has been clearly stated therein that services on account of fortuitous appointment shall be excluded in computing the length of service. On 15/10/1982, the Government of Maharashtra, in exercise of its powers under Article 309 of the Constitution, framed the fresh set of rules called "The Maharashtra Sales Tax Officers Class-I (Recruitment) Rules. 1982" (for short the Rules') replacing the earlier recruitment rules issued in March. 1982. It is important to note that under these new Rules, the ratio of filling up the post by promotion and nomination remained the same except the eligibility criteria that was slightly altered which is again not the subject matter of present dispute. These new set of rules repealed the earlier rules retrospectively. Thus, the existing rules provide a quota for filling up the posts by promotion and nomination as indicated earlier.
(3.) IT was admitted on behalf of the State Government that the number of posts of Sales Tax Officers Class-II was 472 till the Government converted 382 posts into Sales Tax Officers Class-I with effect from the date of filling the posts vide G.R. dated 16/06/1982. Despite the fact that the Rules came into force on 15/10/1982, the respondent Nos. 1 and 3 did not adhere to the quota rule and went on giving promotions to promotees as Sales Tax Officers Class-I. During the period 1982-86, no appointment by nomination was made. On the contrary the State of Maharashtra - the first respondent filled 747 posts of Sales Tax Officers Class-I en bloc by giving promotions to the promotees in violation of the statutory quota rules. Neither the vacancies were earmarked for the respective quotas nor any efforts were made to advertise and fill in the posts by nomination. It is the case of the appellants which is also borne 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 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 22/11/1983, 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, until further orders and until approval by the Government, and their posting appointments are made as per the following:- JUDGEMENT_354_1_1999Html1.htm Paragraph 2 of the said office order is to the following effect:- "The above appointments by promotion of the Sales Tax Officer Class-II, to that of Sales Tax Officer Class-I, are fortuitous and until further orders and after approval of the Government. S/Shri R.M.Patil, S.R. Kulkarni, G.B. Naik, M.D. Pore, R.K. Beedkar and K.S.P. Blaruah are promoted on trial basis." (Emphasis supplied) Thus, it is clear that 747 Sales Tax Officers Class-II came to be promoted as Class-I Officers in violation of quota rule. ;