IMPORTANT POINT
If there is patent violation of the quota rule, and promotees are appointed temporarily in excess of quota fixed for the promotees, pushing down principle has to be applied in fixing seniority and such promotees cannot claim seniority on the ground that they have already put in number of years of service in promoted post.

JUDGMENT

Civil Appeal No. 7717 of 1994 :

S.P. Kurdukar, J.-This is a third round of litigation whereby 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 indentical 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 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 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 December, 1987. To be more precise, the dispute relates to the fixation of seniority of promotees 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 is res-judicata or constructive res-judicata, the MAT disposed of the controversy raised in O.A. on merits too.

2. Civil Apeal 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 the Civil Appeal No. 7717 of 1994. The facts which are necessary for the disposal of the appeal may be stated briefly as facts 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 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 it 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 supplied).

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 Department, who have passed at least Part I of the Departmental Examination prescribed for the Sales Tax Inspectors or for the Higher Clerical staff in the Sales Tax Department or who have been e