# MAHARASIITRA VIKRIKAR KARAMCHARI SANGATIIAN v. SfATE - **Citation:** [2000] 1 S.C.R. 166 - **Court:** Supreme Court of India - **Decided:** 2000 - **Bench:** S.P. KURDlJKAR, S.S.M. QlJADRI - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/maharasiitra-vikrikar-karamchari-sangatiian-v-sfate-17093 - **Pages:** 27 ## Headnote Service Law : Maharashtra Civil Services (Regulation of Seniority) Rules, 1982 C Rules 4( 1) second proviso, 3(F) and 6. Seniority-Direct .recruits vis-a-vis promotees-lnter se seniority-Res judicata/constructive res judicata-f'rincipl~Applicability of-Two direct recruits challenged the seniority list issued on 12.4.198~State Administrative Tn'bunal (SAT) quashed the seniority list-Supreme Court dismissed SLP D filed by promotees, on merits-Thus SAT judgment became finaf-Fresh seniority list issued on 28.12.1992 and finalised on 29.10.1993--Promotees challenged this seniority list but SAT dismissed the application principally on grounds of res judicata and constructive res judicata-However, to avoid remand of the case, in the event the higher court came to the conclusion that E principle of res judicata/constructive res judicata was not applicable, SAT dismissed the case on merits also-Held: Principles of res judicata/constructive res judicata applicable to the present case on the following grounds : (i) the expression "as far as practicable" having been already construed by SAT its judgment operates as res judicata (ii) the earlier finding is not per incuriam and, therefore, it operates as res judicata (iii) it was open to raise the plea F before SAT that Rules did not permit carry forward of vacancies but that having not been raised, this plea cannot be raised in the present proceeding as it is bamd by constructive res judicata (iv) certificate dated 21.2.1982 !Wt produced before SAT in the earlier case and, therefore, a plea based on this certificate is barred by constructive res judicat~SAT rightly dismissed the G application on the grounds of res judicata and constructive res judicata-Hence, the directions issued by SAT on merits, non est-Maharashtra Sales Tax Inspectors Recruitment Rules, 1971 R.2-Code of Civil Procedure, 1908, s. 11. Seniority-Quota rule-Direct recruits vis-a-vis promotees-lnter se H seniority-Promotion made for in excess of quota since direct recruits were 166 .. .. - MAHARASIITRA VIKRIKAR KARAMCHARI SANGATIIAN v. SfATE 167 not available-Some of the promotees officiated for a long time-fleld : Such A promotees cannot be treated as regular employees so as to entitle them to . claim seniority over direct recruits-Such promotions are only fortuitous/temporary/ad hoc or stop-gap arrangement-Contention of the promotees that the direct recruits were schooling and/or not born in the cadre when they were promoted and, there/ ore, they will suffer hardship if they are pushed down, rejecte~As there is a patent violation of quota rule promotees who remained in the office for all these years cannot take advantage of the situation. B Seniority-Regular employees vis-a-vis absorbed employee~nter se seniority-Sales Tax Inspectors-(STls)-Some employees of Sales Tax Department promoted as STls between 1976 and 1980-Some employees ·C working as senior clerks in Revenue Department absorbed in Sales Tax Department-Such absorbed employees promoted as ST/s during 1981 and afterwards-Held: The post of ST/s is a selection post-Absorbed employees are entitled to benefit of service rendered in their parent department-But they cannot claim seniority as ST/s over those who were already promoted as ST!s prior to their absorptio~ence, High Court rightly quashed the provisional D seniority list which included such absorbed employees. Code of Civil Procedure, 1908: Order 1 Rule 8. Suit in representative capacity-Administrative Tribunal held that the application filed by two direct recruits in an earlier case challenging the seniority list was in a representative capacity-Such finding not specifically challenged before Supreme Court-However, contention raised that the earlier finding by Tribunal did not operate as res judicata since application was filed without obtaining leave under 0.1 R.8 CPC-Held: Such contention rejected since there is no reason to doubt the finding of the Tribunaf-l'ractice and Procedure. 0 Word!' and Phrases : ## Text _Characters 0–39,880 of 64,105. This is a partial read: ask again with offset=39880 for what follows._ A MAHARASHTRA VIKRIKAR KARAMCHARI SANGATHAN JI, STATE OF MAHARASHTRA AND A."IR. JA.1'/UARY 12, 2000 B [S.P. KURDlJKAR AND S.S.M. QlJADRI, JJ.) Service Law : Maharashtra Civil Services (Regulation of Seniority) Rules, 1982 C Rules 4( 1) second proviso, 3(F) and 6. Seniority-Direct .recruits vis-a-vis promotees-lnter se seniority-Res judicata/constructive res judicata-f'rincipl~Applicability of-Two direct recruits challenged the seniority list issued on 12.4.198~State Administrative Tn'bunal (SAT) quashed the seniority list-Supreme Court dismissed SLP D filed by promotees, on merits-Thus SAT judgment became finaf-Fresh seniority list issued on 28.12.1992 and finalised on 29.10.1993--Promotees challenged this seniority list but SAT dismissed the application principally on grounds of res judicata and constructive res judicata-However, to avoid remand of the case, in the event the higher court came to the conclusion that E principle of res judicata/constructive res judicata was not applicable, SAT dismissed the case on merits also-Held: Principles of res judicata/constructive res judicata applicable to the present case on the following grounds : (i) the expression "as far as practicable" having been already construed by SAT its judgment operates as res judicata (ii) the earlier finding is not per incuriam and, therefore, it operates as res judicata (iii) it was open to raise the plea F before SAT that Rules did not permit carry forward of vacancies but that having not been raised, this plea cannot be raised in the present proceeding as it is bamd by constructive res judicata (iv) certificate dated 21.2.1982 !Wt produced before SAT in the earlier case and, therefore, a plea based on this certificate is barred by constructive res judicat~SAT rightly dismissed the G application on the grounds of res judicata and constructive res judicata-Hence, the directions issued by SAT on merits, non est-Maharashtra Sales Tax Inspectors Recruitment Rules, 1971 R.2-Code of Civil Procedure, 1908, s. 11. Seniority-Quota rule-Direct recruits vis-a-vis promotees-lnter se H seniority-Promotion made for in excess of quota since direct recruits were 166 .. .. - MAHARASIITRA VIKRIKAR KARAMCHARI SANGATIIAN v. SfATE 167 not available-Some of the promotees officiated for a long time-fleld : Such A promotees cannot be treated as regular employees so as to entitle them to . claim seniority over direct recruits-Such promotions are only fortuitous/temporary/ad hoc or stop-gap arrangement-Contention of the promotees that the direct recruits were schooling and/or not born in the cadre when they were promoted and, there/ ore, they will suffer hardship if they are pushed down, rejecte~As there is a patent violation of quota rule promotees who remained in the office for all these years cannot take advantage of the situation. B Seniority-Regular employees vis-a-vis absorbed employee~nter se seniority-Sales Tax Inspectors-(STls)-Some employees of Sales Tax Department promoted as STls between 1976 and 1980-Some employees ·C working as senior clerks in Revenue Department absorbed in Sales Tax Department-Such absorbed employees promoted as ST/s during 1981 and afterwards-Held: The post of ST/s is a selection post-Absorbed employees are entitled to benefit of service rendered in their parent department-But they cannot claim seniority as ST/s over those who were already promoted as ST!s prior to their absorptio~ence, High Court rightly quashed the provisional D seniority list which included such absorbed employees. Code of Civil Procedure, 1908: Order 1 Rule 8. Suit in representative capacity-Administrative Tribunal held that the application filed by two direct recruits in an earlier case challenging the seniority list was in a representative capacity-Such finding not specifically challenged before Supreme Court-However, contention raised that the earlier finding by Tribunal did not operate as res judicata since application was filed without obtaining leave under 0.1 R.8 CPC-Held: Such contention rejected since there is no reason to doubt the finding of the Tribunaf-l'ractice and Procedure. 0 Word!' and Phrases : "As far as practicable''-Meaning of-In the context of R. 2(a) of the E F Maharashtra Sales Tax Inspectors Recruitment Rules, 1971. G "Fortuitous appointment''-Meaning of-Jn the context of R. 3(F) of the Maharashtra Civil Services (Regulation of Seniority) Rules, 1982. In Civil Appeal No. 7717 of 1994 the respondent-State issued a seniority list on U.4.1989 under the Maharashtra Sales Tax Inspectors H 168 SUPREME COURT REPORTS (2000] 1 S.C.R. A Recruitment Rules, 1971 in respect of Sales Tax Inspectors (STls) from two sources, namely, direct recruits and by promotion in the ratio of 60 : 40 as far as practicable. Two direct recruits filed an application before the State Administrative Tribunal (SAT) challenging this seniority list, which was quashed. The SLP filed by the promotees against the aforesaid B decision was dismissed by this Court on merits. The SAT judgment, therefore, became final. Pursuant to the SAT judgment a fresh seniority list was issued on 28.12.1992 and finalised on 29.10.1993. The appellants· promotees filed an application before the SAT challenging this seniority list. But the SAT C dismissed the application on the grounds that it was barred by res judicata and constructive rel judicata. However, the SAT gave the finding on merits also in order to avoid the remand in the event the higher court came to the conclusion that the application was not barred by res judicata or constructive res judicata. D In Civil Appeal No. 6316 of 1997 the dispute pertained to the determination of seniority of STis who were promoted (on absorption) from two different sources, namely, Revenue Department and Sales Tax Depart· ment. The dispute in this civil appeal was confined to inter se seniority of promotees from these two sources. The post of STI was a selection post. E Some employees of the Sales Tax Department were promoted as STls between 1976 and 1980. Some employees wor!ting as senior clerks in the Revenue Department were absorbed in the Sales Tax Department in terms of an order dated 12.12.1980. These employees were given the benefit of service rendered on equivalent posts in the Revenue Department and were p promoted as STis during 1981 and afterwards. The appellant-State published a provisional s~niority list in which the absorbed employees were also included. This seniority list was challengecj, by the respondents in a writ petition filed before the High Court on the ground that on the date when these employees were absorbed the respondents were already promoted as STls and, therefore, the provisional seniority list was not only G erroneous but also violative of Articles 14 and 16 of the Constitution. The High Court allowed the writ petition and quashed the seniority list. On behalf of the appellant-promotees it was contended that according to a certificate dated 21.2.1992 many posts of STls were filled up by H promotion since no direct recruits were available; that the earlier finding - -- MAHARASHfRA VIKRIKARKARAMCHARISA\IGATHANv. STATE 169 by SAT was per incuriam; that the two direct recruits filed the application A b:fore the SAT in a representative capacity without obtaining leave under · Order 1 Rule 8 of the Civil Procedure Code, 1908 and, therefore, the earlier finding by SAT did not operate as res judicata; that the Rules did not permit carrying forward of the vacancies; that some of the appellantpromotees had officiated for more than 17 years when the direct recruits were either schooling and/or not born in the cadre and, therefore, it would cause great hardship to the appellants if they were pushed down. Dismissing the appeals, this Court HELD: (In Civil Appeal No. 7717of1994) 1.1. The expression "as far as prdcticable" occurring in Rule 2 of the Maharashtra Sales Tax Inspectors Recruitment Rules, 1971 has already been.construed by the State Administn1tive Tribunal (SAT) in the applica· B c tion filed by the two direct recruits and, therefore, the SAT rightly negatived the contention raised by the appellant-promotees on the ground of D res judicata. (184-A; Fl 1.2. The finding recorded by the SAT in its judgment is not per incuriam and, therefore, it oper.ites as res judicata. It was open to the appellant·promotees to raise the plea before the SAT that the Rules did not permit carrying forward uf vacaincits and that having been not done, such a contention in the present case is barred by the principles of cot.'lstructive res judicata. The certificate dated 21.2.1992 was not produced w~en the earlier case was pending before the SAT and, therefore, raising of a plea based on this certificate in the present proceedings is barred by E the principles of constructive res judicata. Therefore, the SAT rightly F ·dismissed tile application on tile grounds of res judicata and constructive res judicata. Hence, the directions issued by the SAT on merits will be non est. [184-F-G; 185-B; 186-D-E; 187-E-F] N.K Chauhan v.State of Gujarat, [1977] l SCC 308 and Direct Recrnit Class II Engineering Officers' Association v. State of Maharashtra, [1990] 2 G sec 715, relied on. Municipal Corporation of Delhi v. Gumam Kaur, (1989] 1 SCC 101; Narender Chadha v. Union of India, (19861 2 SCC 157 and AR. Antulay v. R.S. Nayak, [1988) 2 sec 602, held inapplicable. H 170 SUPREME COURT REPORTS [2000] 1 S.C.R. A 2.1. The certificate dated 21.2.1992 does not advance the case of the appellants. On the contrary, this certificate unmistakably indicates that the promotfons given to the promotees in excess of their quota for the respective unit year were treated as temporary promotions. No document is produced to indicate that the State Government has ever B talten 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 arranC gement. This certificate, therefore, is of no consequence. (186-B-D] 2.2. The SAT in the earlier application filed by the two direct recruits had held that they had sued in a representative capacity. Such a finding was not specifically challenged in the present appeal. It is, therefore, not D possible to accept the contention of the appellants that the earlier finding did not operate as res judicata since no leave under Order 1 Rule 8 of the Code of Civil Procedure to file the application in a representative capacity . was obtained by the direct recruits. Moreover, there is no reason to doubt E the findings of the Tribunal in this behalf. (186-G; 187-B] 2.3. It is not possible to accept the promotees' contention that some of them had officii:.ted for more than 17 years when some of the direct recruits were either schooling and/or not born in the cadre and, therefore, they will sufier hardship if they were pushed down. If there is patent violation of the quota rule, the result must follow and the appellants who F remained in the of.ice for all these years cannot take advantage of the situation. [187-C-D] (In Civil Appeal No. 6316 of 1997) G 1. The employees who were absorbed in the Sales Tax Department from the Revenue Department are entitled to the benefit of service rendered in their parent department. But they are not entitled to claim seniority as Sales Tax Inspectors over those who were already promoted prior to their promotion. Hence, the High Court rightly quashed the H provisional seniority list. [190-F-H; 191-A; 192-E] MAHARASHI'RA VlijOlUKAR KARAMCHARl SANliATIIAN "·STAIB [S.P. KURDUKARJ.] 171 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7717 of A 1994 Etc. Etc. 'From the Judgment and Order dated 23.3.94 of the Maharashtra Administrative Tribunal, Bombay in O.A. No. 690-A of 1993 . . '•· Harish N. Salve, V.A. Mohta, P.P. Rao, G.B. Sathe, M.S. Ganesh, A.K. Ganguli, K.K. Singhvi, S.P. Sharm~, Dr. Joseph P. Verghese (A.S. Bhasme for State), Saiiad Hussain, R.B. Masodkar, K.L. Taneja, C.S. Ashri, M.K.D. Namboodri, R.P. Wadhwani, L.J. Vadakara, Raju Ramachandran, S.M. Jadhav, D.M. Nargolkar, Dr. M.P. Raju, Mukul Mudgal, Mrs. Urmila Sirur, Dr. K.S. Chauhan, Ms. Meeta Gond, Abraham Pattiyani, S.S. Shinde, Abraham M. Pattiyani, V.K. Sidhardhan, A.M. Khanwilkar, Vinay Kumar Garg, Sunil Kumar, B.N. Singhvi, Motl Lal Hamembran, Ms. Meetha Prasad, V.B. Joshi, Dinesh P.V. and M.L. Gond for the appearing parties. Respondent-In-Person (N.P.) In C.A. No . .6316/97. The Judgment of the Court was delivered by S.P. KURDUKAR, J. Civil Appeal No. 7717 Of 1994. B c D This is a third round of litigation whereby a challenge to the seniority E 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 correctF ness of the judgment and order dated 23rd March, 1994 passed by the Maharashtra Administrative Tribunal, Bombay Bench in Original ApplicaG 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 H 172 SUPREME COURT REPORTS [2C"v0] 1 S.C.R. A 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 therdn are barred by principles of res-judicata as well as constructive res-judicata. However, with a view to avoid the remand, B in case the higher courts hold that the 0.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 b filed by the State of Maharashtra impugning the judgment and order dated 23rd February, 1989 rendered by C 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 D promotees from these two sources. E 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 'STls') 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 F 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 G the i-ules 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 supH plied). MAHARASHTRA VlKRIKAR KARAM CHARI SANGATIIAN •· STAIB {S.P. KURDUKAR J. j 173 Rule 2 reads thus :- 2. Appointment to the posts of Sales Tax Inspectors shall be made either : A (a) by promotion of suitable clerks in the Sales Tax Department, who have passed at least Part I of the Departmental ExB 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 c to pass Part II of the Departmental Examination for Sales Tax Inspector also, according to the rules made in that behall, failing D 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 V'dcancies not exceeding one year which may be filled by promotion. Such promoE tions shall, however, be treated as stopgap promotions and will not entitle the promotees to seniority by virtue thereof. Note : ln the period from the date on which these rules come into force to the date on which the results of the first Departmental F 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 G 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- ~~~ - H 174 SUPREME COURT REPORTS [2000) 1 S.C.R. A (i) possess a degree in Arts, Science, Commerce, Law or B Agricul.ture 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 frrst day of the month immediately following the month in which the posts are advertised by the Commission; C 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 Artieie 309 of the Constitution of India framed the Rules for regulating the seniority amongst government employees. The said Rules D were called Maharashtra Civil Services (Regulation of Seniority) Rules, 1982 (for short 'Rules 1982'). These rules came into force 1w.e.f. June 21, 1982. Rule 4 is relevant in the present controversy and it reads thus : E F G H "4. General Principles of Seniority : (1) Subject to the other provisions of these rult:s, 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 accord- ~HfRA VIKRIKAR KARAMCHAR!SANGATllAN '·STATE (S.P. KURDUKARJ.J 175 ance with the provisions of the relevant recruitment rules. (2) Notwithstanding anything contained in sub rule (1) : (a) the inter se st:niority of direct recruits sdected in ont: 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. A B c (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 St:kct List. If the Select List is prepared in two parts, the first part, containing the names of those selected unconditionally D 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 ordt:r in which the names are arranged in the Sek:ct 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 determining the seniority.' E F G H 176 SUPREME COURT REPORTS (2000] 1 S.C.R. A Rule 3 contains several definitions and we are concerned with four definitions. B c 3(D) "Deemed date" means the date assigned to a Government servant in accordanct: with the provisions of Rule 5; 3(E) ''Direct recrnit" mt:ans, in relation to any post, cadrt: or st:rvice, a person appointed by nomination thereto; 3{F) "fortuitous appointment' mt:ans a temporary appointment made ptnding a rt:gular appointmt:nt in accordance with the provisions of tht: relevant rccruitmt:nt rules; 3(H) "Promotee" means, in relation to any post, cadrt: or service, a Governmt:nt servant appointed thereto by promotion from a lower post, cadre or service; D 5. The State of Maharashtra again in cxt:rcise 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 : E F G H ''2. In Rult: 4 of the Maharashtra Civil Services (Regulation of St:niority) Rules, 1982 (hereinafter reforred to as ''the principle rules", in sub-rult: (1) in the second proviso, after the words, "a fortuitous appointment" the following shall bt: inst:rted, namely :- "except in a case where the competent authority certifies that, it was not expedient/possible or practicable to make a regular appointment strictly in accordance with tht: 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 ap- MAHARASHI'RA VIKRJKARXARAMCHARlSANOATHAN '·STAIB fS.P. KURDUKARJ.i 177 pointment had to be made, as candidates for regular appointment A 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 wen: holding the field when the B impugned seniority list as amended came to be published in the year 1992 and 1993. It is clear from the certificate of the Addi. 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. l.Jnder the Recruitment Rules, 1050 posts for the direct recruits were required to be filled in accordance with· the ratio of 60:40. However, C 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 D rule was not observed and the departmental candidates came to be promoted as Sales Tax Inspectors beyond their prescribed quota of 403. 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 STls E during this block. The contention raised on behalf of the promotces (appellants) is that the quota rule was broken down and as a result thereof, the promotces were required to be appointed in view of the exigencies of service and if so appointed, their promotions cannot be termed as fortuitous/temporary/ad hoc and that they will be entitled to earn the seniority p and placement in the impugned seniority list from the date they were so' promoted and working as STls. As against this, the contention raised on behalf of the direct recruits was that the promotees who wt:re promoted/appointed in the vacancies falling in the quota of dirt:ct recruits (60%), such promotions of the promotecs were fortuitous in excess of their quota and notwithstanding that they were so appointed and working as G STls 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 acc0mmodated in their quota ( 40%) as regular promotees, their date of promotion or officiation will not be H 178 SUPREME COURT REPORTS [2000] 1 S.C.R. A 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, B therefore, prayed that present O.A. has no substance and tht: 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 C 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 STls in Bombay High Court wherein the direct recruits were also arrayed D 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 E 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 p 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 Petition No. 4852of1989 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 G 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 H were not regularly appointed as STis, they will be pushed down below the - MAHARASIITRA VIKRIKAR KARAM CHARI SANGATilAN '· STAIE [S.P. KURDUKAR J.; 17