Important Point
Where service rules provides that any period of fortuitous service in promotional post cannot be taken into account for purpose of fixing seniority, period till regularisation of promotion has to be excluded while fixing seniority in service.

Headnote:Maharashtra Sales Tax Officers Class-I (Recruitment) Rules, 1982-Rules 4 and 4A-Maharashtra Service (Regulation of Seniority) Rules, 1982-Rules 3(f) and 4-Seniority -Promotees v. direct recruits-Recruit Rules providing for recruitment of Class I Sales Tax Officer on basis of promotion and nomination at 60 : 40 for first three years and at 50 : 50 thereafter-Service Rules providing that period of service on fortuitous service not to be taken into account while fixing seniority-Promotion given without adhering to quota Rules till 1988-For first time in 1988 direct recruitment made-Service Rule Amended inserting Rule 4A retrospectively enabling Government to make appointment in relaxation of Rule 4-Seniority list prepared taking into account fortuitous service of promotees-Direct recruits claim to revise seniority list in accordance with Rules-Rejection by tribunal that Rule 4A enabled Government to make appointments in relaxation of Rule 4-Not sustainable-Service of promotees never regularised-Consultation of Service Commission required to take recourse to Rule 4A - No such concurrence from Service Commission obtained -Fortuitous service period, cannot be taken into account while fixing seniority.
       Held : 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. Except these promotions orders, no other order regularising their promotions/appointments by any point of time under Rule 4A was brought to our notice either by the counsel for the State Government or the private respondents. Therefore, the effect of such promotions/appointments has to be traced under the Rules only. The Maharashtra Civil Services (Regulation of Seniority) Rules, 1982 were framed under Article 309 of the Constitution and were brought into force on 21st June, 1982. Applicability of these rules in the present case is not disputed. The question would be as to whether the period during which private respondents continued to hold the posts of Sales Tax Officers Class-I on fortuitous basis, until further orders and until approval by the Government could be reckoned for the purposes of determining their seniority in the said cadre. The answer obviously is in the negative unless the regularisation is in confirmity with 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. (Para 17)
       Coming to the interpretation of Rule 4A, it is no 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 necessary nugatory. It would give unbridle power to the government to dispense with the consultation with MPSC which may result into arbitrary exercise of the powers by the Authority. This could never be the object of Rule 4A. In our considered view, the word “may” must mean “shall” and this is also obvious from the correspondence between the State Government and MPSC. The Government of Maharashtra wanted to relax quota rule but MPSC was not agreeable and ultimately it relented to the request of the Government of Maharashtra and suggested amended Rule 4A. This suggestion was accepted and accordingly the amendment was inserted in the Rules. The MPSC gave its approval to the relaxation vide its letter dated March 28, 1989 but by that time, several appointments of the departmental candidates on similar terms in the cadre of Sales Tax Officers Class-I were made exceeding quota rule. As far as the regularisation process is concerned, it is quite clear from the letter dated March 28, 1989 by the MPSC to the Secretary, Finance Department calling upon the latter to furnish the details about the availability of posts yearwise with confidential records thereof in order to enable the Commission to take the decision on the pending select list and to regularise the promotions of the Sales Tax Officers Class-I from 1982 to December 31, 1986. As stated earlier, the respondents did not produce any order regularising these private respondents. The appellants were appointed by nomination on or after September, 1988 and, therefore, their placement in the seniority vis-a-vis the promotees will have to be determined on the basis of date of regular appointment in the cadre excluding the period of fortuitous appointment. Consequently, the impugned seniority lists as on 1991, 1993 and 1994 shall be modified suitably. In our considered view, Rule 4A will have to be construed as indicated above and any other construction to the said rule would violate the very object of quota rule. (Para 18)
       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 premises 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 letter dated March 28, 1989, MPSC relented to the desired relaxation and suggested amendment to the Rules by inserting Rule 4A. Secondly, in order to give effect to Rule 4A as regards regularisation, the MPSC had asked the Secretary, Finance Department to furnish the necessary details as contained in the letter dated March 28, 1989 so that regularisation process could be undertaken. Both these requirements, in our considered view, were not satisfied by the Government of Maharashtra while appointing/promoting the private respondents as Sales Tax Officer Class-I. If this be so, then the promotion/appointment orders of private respondents cannot be justified by taking shelter of Rule 4A. (Para 19)
       Held consequently : In view of our conclusions recorded hereinabove, the three seniority lists are unsustainable and consequently they are quashed and set aside and respondent Nos. 1 and 2 are directed to prepare a fresh seniority list of promotees and nominees on the basis of the date of appointments of the respective Sales Tax Officers Class-I in that cadre ignoring the period during which the private respondents and other similarly situated Sales Tax Officers Class-I were appointed on fortuitous basis, until further orders or on long term basis etc. The date of regularisation shall be the relevant date for the purpose of fixing the inter se seniority of promotees and nominees. (Para 22)

Judgment

S.P. Kurdukar, J.-Leave granted.

2. The appellants are the direct recruit Sales Tax Officers Class-I in the Sales Tax Department of the State of Maharashtra. They were appointed on or after 6th September, 1988, after following the prescribed procedure laid down in the Maharashtra Sales Tax Officers Class-I (Recruitment) Rules, 1982 which came into force on October 14, 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 June 7, 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.

3. 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 1st April, 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 June 21, 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.

4. On October 15, 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 filing 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 filing up the posts by promotion and nomination as indicated earlier.

5. 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 16th June, 1982.

6. Despite the fact that the Rules came into force on October 15, 1982, the respondent Nos.

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1998 Supreme(SC) 1118

Important PointWhere service rules provides that any period of fortuitous service in promotional post cannot be taken into account for purpose of fixing seniority, period till regularisation of promotion has to be excluded while fixing seniority in service.

Cases Referred (1)

Important Point
Where service rules provides that any period of fortuitous service in promotional post cannot be taken into account for purpose of fixing seniority, period till regularisation of promotion has to be excluded while fixing seniority in service.