LexMAHARASHTRA VIKRIKAR KARAMCHARI SANGATHAN versus STATE OF MAHARASHTRA AND ANR
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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/construc- tive 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/tem- porary/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 A
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