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12. The Tribunal after considering the rival contentions and on perusal of the government files rejected the original petition of the appellants holding that the decision of the Government to fill up the posts of Sales Tax Officers Class-I by promotions was not only conscious decision but it had a concurrence of MPSC. Rule 4A of the Rules having been made retrospectively applicable, the promotions of the promotees can not be faulted on any ground. Besides rule 7 of Seniority Rules empowers the government after consultation with the MPSC to relax rules in certain cases if it is satisfied that the operation of any of these rules causes or is likely to cause undue hardship to any government servant or class of government servants or that the relaxation is necessary in the public interest for the reasons recorded in writing, The Government had taken a conscious decision in terms of rule 7. After referring to the correspondence between the Finance Department and MPSC which commenced on 20th October, 1983 and ended with the tatter's approval for relaxing the quota rule vide letter dated 28th March, 1989, accepted the suggestion of MPSC to amend the Rules by adding rule 4A retrospectively. In view of these developments, Tribunal opined that the decision of the Government of Maharashtra to promote the departmental candidates to the posts of Sales Tax Officers Class-I in relaxation of quota rule did not suffer from any vice. The Tribunal then observed :-

The Tribunal then held that the Government did not make efforts to make appointments by nomination for more than three years. The first requisition of the Finance Department sent to the MPSC for selection of candidates by nomination was in 1986 and it was confined to only 50 posts though the requisition should have been for 166 posts in the ratio of 40 (60:40). The first batch of the appellants was selected in 1987 and their appointments as Sales tax Officers Class-I were made in September, 1988. The Tribunal then held that the Government had no intention to revert the promotees which was obvious from the fact that it sought the approval of MPSC in respect of these promotees though belatedly vide letter dated 20th October, 1983 and continued to do so even after MPSC refused to give its approval and ultimately it suggested amendment to the Rules by inserting rule 4A in the Rules relaxing the quota rule. The Tribunal also held that since the appellants did not challenge the seniority lists published on 11th December, 1991, 1st February, 1993 and 29th December, 1993 within time, it must follow that present action suffers from laches. Consistent with these findings, the tribunal dismissed the original application filed by the appellants.

18. Coming to the interpretation of rule 4A, it is ho 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. We also find support to our view from the decision of this Court in Keshav Chandra Joshi and Ors. v. Union of India arid Ors, [1992] Supp 1 SCC 272. This Court was dealing with the interpretation of rule 27 of U.P. Forest Service Rules, 1952 and the said rule is similar to rule 4A, While construing the word "may" used in rule 27 , this Court held that the word "may" has to be read as "shall" and, therefore, consultation is mandatory. It must, therefore, follow that 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 promtees 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.
19. 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 premise 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 Glass-I. If this be so, then the promotion/ appointment orders of private respondents cannot be justified by taking shelter of rule 4A.