1. 24 applicants in this batch of cases have prayed for the following reliefs: (i) To call for the records leading to the issuance of office memorandum No. F. No. 212(17)/2000-01/CCIT dated 25.1.2001 at Annexure A-8 and on perusal to quash the same as arbitrary, unjust and illegal; (ii) To call for the records leading to the issuance of office memorandum No. 9/NGE/98 No. 108/NGE(APP.)/3-97 dated 23.1.1998 at Annexure A-9 and on perusal to quash Para 5(c) of the said memorandum as illegal and unjust and violative of the law laid down by Supreme Court in R.K. Sabharwal's case.
(iii) To call for the records leading to the issuance of office memorandum No. 36012/2/96-Estt. (RES) dated 2.7.1997 at Annexure A-6 and on perusal to quash the same to the extent it restricts the effect of the said office memorandum only from 2.7.1997 since it has the impact of postponing the operation of the law laid down by Supreme Court in R.K. Sabharwal's case from 10.2.1995 to 2.7.1997, as Violative of the law laid down by the Supreme Court.
(i v) To direct the first respondent to review the cadre strength of Income Tax Officers in Karnataka Circle as on 10.2.95 with regard to the holding of posts by reserved candidates and General merit candidates and to make promotions to the posts which fell vacant after 10.2.95 by following post-based roster after cancelling the erroneous promotions given to Scheduled Caste candidates i.e.
private respondents number 5 to 14 following vacancy based roster.
(v) To direct the first respondent to follow post-based roster in promoting the Income Tax Inspectors to the cadre of Income Tax Officers from 10.2.1995 onwards and to promote only such of the eligible candidates as per the category following the law as laid down in R.K. Sabharwal's case by the Supreme Court.
(viii) To pass such other orders as this Hon'ble Tribunal deems fit and expedient in the facts and circumstances of the case.
2. The admitted facts of the case are that the applicants who were working as Income Tax Inspectors in the office of first respondent ('R' for short) were overlooked for promotion to the next higher post of Income Tax Officer and R-5 to 14 who belong to SC category had been promoted in the year 1995-2000. The chart below would show the applicants position vis a vis R-5 to 14 in the seniority list of Income Tax Inspectors as on 1.9.1995 (Annexure A-1).
The contention raised by the applicants is that as on 10.2.1995, the cadre of Income Tax Officer ('ITO' for short) had the cadre strength of 141 in Karnataka. Amongst 141 ITOs, 31 belonged to SC category while 10 belonged to ST. It has been contended as on 10.2.1995, there had been excessive representation belonging to SC/ST category officials. The contention is that the Hon'ble Supreme Court in R.K. Sabharwal v. State of Punjab, 1995(2) SCC (L&S) 548=1995(3) SLJ 227 (SC) have held as under: ".... The reservations provided under the impugned Government instructions are to be operated in accordance with the roster to be maintained in each Department. The roster is implemented in the form of running account from year to year. The purpose of 'running account' is to make sure that the Scheduled Castes/Schedule Tribes and Backward Classes get their percentage of reserved posts. The concept of 'running account' in the impugned instructions has to be so interpreted that it does not result in excessive reservation." "As and when, there is a vacancy whether permanent or temporary in a particular post the same has to be filled from amongst the category to which the post belonged in the roster. For example the Scheduled Caste persons holding the posts at roster points 1, 7, 15 retire then these slots are to be filled from amongst the persons belonging to the Scheduled Castes. Similarly, if the persons holding the post at points 8 to 14 or 23 to 29 retire then these slots are to, be filled from among the general category. By following this procedure there shall neither be shortfall nor excess in the percentage of reservation.
6. The expression 'posts' and 'vacancies,' often used in the executive instructions providing for reservations, are rather problematical. The word 'post' means an appointment, job, office or employment. A position to which a person is appointed. 'Vacancy' means an unoccupied post or office. The plain meaning of the two expressions make it clear that there must be a 'post' in existence to enable the 'vacancy' to occur. The cadre-strength is always measured by the number of posts comprising the cadre. Right to be considered for appointment can only be claimed in respect of a post in a cadre. As a consequence the percentage of reservation has to be worked out in relation to the number of posts which form the cadre strength. The concept of 'vacancy' has no relevance in operating the percentage of reservation.
7. When all the roster points in a cadre are filled the required percentage of reservation is achieved. Once the total cadre has full representation of the Scheduled Castes/Tribes and Backward Classes in accordance with the reservation policy then the vacancies arising thereafter in the cadre are to be filled from amongst the category of persons to whom the respective vacancies belong." 3. The applicants have sought review of promotions made in the cadre of ITOs in Karnataka Region, who had been promoted in complete disregard of the law laid down in R.K. Sabharwal's case from 10.2.1995 onwards.
It is an admitted case of the parties that all the respondents 5-14, who belong to reserved category, have been promoted from September 1995 till May 2000. The applicants have made a representation dated 6.8.1998 seeking implementation of post based roster in view of the law laid by the Hon'ble Supreme Court in the aforementioned case. Department of Personnel and Training ('DOP&T' for short) issued Office Memorandum dated 2.7.1997 replacing the vacancy based roster to Post based roster.
Though in terms of Para 9, the said office memorandum came into effect from the date of its issuance from 2.7.1997, but by virtue of the order of this Tribunal in O.A. No. 1066/96 decided on 11.2.1998, the said date has been related back to 10.2.1995 i.e., the date on which the Hon'ble Supreme Court pronounced the judgment in R.K. Sabharwal's case.
4. The applicants state that first applicant made a representation dated 6.8.1998 and sought implementation of Post based roster in view of the aforesaid law laid down by Hon'ble Supreme Court. The DOP&T also issued O.M. dated 2.7.1997 (Annexure A-6), which was issued to comply with the directions of Hon'ble Supreme Court in R.K. Sabharwal's case, replacing vacancy based roster to Post based roster. Since the said representation did not elicit any response, another representation dated 7.9.2000 (Annexure A-7) was made. The said representation was rejected vide communication dated 25.1.2001 (Annexure A-8), by stating as follows: "2. As per clarification given by DOP&T which is evident from C&AG's circular dated 23.1.1998 at 5(c), the senior most official in a cadre belonging to reserved category considered fit for promotion will be promoted to higher post despite excess representation of such reserved category in that higher post but he would be, shown against reserved category to which he belongs for the purpose of future adjustment.
As per clarifications issued by the DOP&T which is evident in C&AG Circular dated 23.1.1998, seniormost official in a cadre belonging to reserved category who is considered fit for promotion is to be promoted despite excessive representation of such reserved category in the higher post. Accordingly it was stated that the procedure followed in Karnataka region on the basis of post based system is in accordance with the guidelines of the DOP&T. Para 5(c) of the clarification given by DOP&T relates to question where the doubt was "(c) Whether a seniormost official in a cadre belonging to reserved category considered fit for promotion on seniority-cum-fitness basis will be promoted to higher post despite excess representation of such reserved category in that higher post? Also, whether he would be shown against unreserved point in the roster? The said doubt was clarified by the C&AG in consultation with DOP&T by stating that the seniormost official would be shown against the reserved category to which he belongs for the purpose of future adjustment.
5. As per the recruitment rules in force for the post in question, the post of Income Tax Officer (for short referred as ITO) is a selection post and as such the doubt which was raised in Para 5(c) and clarified by the C&AG Circular dated 23.1.1998 dealing with a situation of promotion on seniority-cum-fitness basis is inapplicable in the facts of the present case. As such the reasons contained in impugned communication dated 25.1.2001 are unjust and untenable besides being misplaced.
6. The respondents No. 1-4 have filed their reply and had raised the objection about the limitation and delay in filing the present O.As. It has been stated that R-5 to 14 were promoted as ITO on various dates depending upon their seniority on the basis of vacancy based promotion as they belonged to SC/ST category, in terms of clarification issued by DOP&T and as incorporated in C&AG Circular dated 23.1.1998. It has further been contended that the DOP&T O.M. dated 2.7.1997 is to be implemented from 2.7.1997 i.e., the date on which the DOP&T issued the said circular and not from the date of judgment of the Hon'ble Supreme Court in R.K. Sabharwal's case. It has been contended that the R-1 is bound by the DOP&T O.M. dated 2.7.1997, which O.M. eventually is based on judgment of the Hon'ble Supreme Court in R.K. Sabharwal's case. The Respondent No. 1 has contended that they cannot overlook the circulars, O.Ms, and instructions issued from time to time and accordingly it cannot be said that the respondents have not followed the principles laid down by the Hon'ble Supreme Court in its judgment dated 10.2.1995, in R.K. Sabharwal's case. The respondents have also relied upon the 85th Constitutional Amendment, whereby Article 16 of the Constitution has been amended. The said 85th Amendment Act, 2001 reads as under: "In Article 16 of the Constitution, in Clause (4-A), for the words, "in matters of promotion to any class," the words "in matters of promotion with consequential seniority, to any class" shall be substituted," In our considered view the 85th Constitutional amendment has no application and relevant to the issues raised in the present O.As.
Similarly the contention regarding delay and laches is misplaced. The respondents 1-4 are bound to implement the law laid clown by Hon'ble Supreme Court. Merely because no O.M. was issued by DOP&T, the law laid down by the Hon'ble Court is not kept in abeyance nor ceases to be inapplicable and inoperative as sought to be projected by respondents 1 -4. Under Article 141 of the Constitution of India, the law declared by the Supreme Court is binding on all Courts. Similarly under Article 144, all authorities civil and judicial in the territory of India, are required to act in aid of the Hon'ble Supreme Court. As such, even if no O.M. is issued by the Nodal Ministry, the law declared by Hon'ble Supreme Court becomes binding from the date on which such law is laid down and not from the date when O.Ms, are issued by the Government and concerned Department.
7. Learned Counsel for the applicant has made a fervent plea that in view of the law laid down by the Hon'ble Supreme Court in its Constitution Bench judgment in R.K. Sabharwal's case, the respondents are duty bound not to give promotion in excess of quota meant for SC/ST candidates. The applicants' contention raised in Para 4.4 that there had been an excessive representation of SC/ST Category Officials in the cadre of ITO has not been disputed at all. Rather an attempt has been made by the respondents to suggest that the promotions so ordered in favour of R-5 to 14 were based on the seniority, which in our considered view is not justified. As noted hereinabove, under the RRs the post in question is a selection post.
8. As noted hereinabove, R-5 to 8 who belong to SC Category were promoted on 12.9.1995; while R-9 was promoted on 14.9.1996; R-10 was promoted with effect from 31.5.1996; R-l 1 was promoted with effect from 10.7.1997; R-12 was promoted with effect from 30.6.1997, R-13 was promoted with effect from 4.12.1997 and R-14 was promoted with effect from 1.5.2000. As such it can be seen that R-l to 3 promoted the officials belonging to SC category even after the pronouncement of the judgment dated 10.2.1995 and issuance of O.M. dated 2.7.1997, as well as after the applicants made their representation in the year 1998.
9. From the tabular statement noted hereinabove, it is clear that the applicants 13 and 14 are senior to respondents 5 and 6. Similarly applicants No. 1, 3, 9, 10, 18, 19, 23 and 24 are senior to respondents 7 and 8. Respondents 5 to 8 were promoted with effect from 12.9.1995 while applicants mentioned hereinabove were promoted only in the year 2001. Similarly it is noted from the seniority list of ITO as on 1.9,2000 that Jamadar U.A., Mobin E.I. and Mohamed Tahir Ali who were at Sl. No. 32-34 of the seniority list of ITO Inspector as on 1.9.1995 were promoted as ITO with effect from 13.18/9/95 i.e., after R-5 to 8 were promoted on 12.9.1995. Jamadar U.A., Mobin E.I. and Mohamed Tahir Ali were seniors to these respondents. The Hon'ble Supreme Court in Badrinath v. State of Tamil Nadu, 2000(8) SCC 395 : 2001 SCC (L&S) 13, held an officer has a fundamental right of consideration for promotion.
The relevant portion of the said judgment reads as under: "47. Every officer has a right to be considered for promotion under Article 16 to a higher post subject to eligibility, provided he is within the zone of consideration. But the question is as to the manner in which his case is to be considered. This aspect is a matter of considerable importance in service jurisprudence as it deals with 'fairness' in the matter of consideration for promotion under Article 16. We shall therefore refer to the current legal position." After analysing and reviewing various judgments rendered from time to time the Hon'ble Supreme Court summarised various principles in the following terms: "58. From the above judgments, the following principles can be summarised: (i) Under Article 16 of the Constitution, right to be 'considered' for promotion is a fundamental right. It is not the mere 'consideration' for promotion that is important but the 'consideration' must be 'fair' according to established principles governing service jurisprudence." The aforesaid law is squarely applicable to the facts of the present case, and grossly violated by the respondents No. 1-3.
10. The post in question i.e., ITO being a selection post there has to be zone of consideration. Admittedly the applicants 1, 3, 9, 10, 13, 14, 19, 23 and 24 who were senior to R-7, 8, 9 and 11 were within the zone of consideration and entitled to be considered for promotion alongwith them if not earlier to them. This Fundamental Right has admittedly been denied to them. As noted hereinabove, the application of O.M. dated 2.7.1997 has already been related back to the date of judgment of the Hon'ble Supreme Court in R.K. Sabharwal's case on 10.2.1995, and accordingly there is absolutely no justification in the stand taken by the respondents 1 to 3 that R-5 to 14 were promoted based on their seniority.
11. As per the law laid down by the Hon'ble Supreme Court in 1990(2) SCC 48 Management of M/s. M.S. Nally Bharat Engineering Co. Ltd. and State of Bihar and Others fairness is the test in the administrative action taken by the Government and its functionaries. The Hon'ble Supreme Court has held as follows: "It is a rule to ensure the vast power in the modern State is not abused but properly exercised. The state power is used for proper and not for improper purposes. The authority is not misguided by extraneous or irrelevant consideration. Fairness is also a principle to ensure that statutory authority arrives at a just decision either in promoting the interest or affecting the rights of persons. To use the time hallowed phrase 'that justice should not only be done but to be seen to be done' is the essence of fairness equally applicable to administrative authorities. Fairness is thus a prime test for proper and good administration."Tandon Brothers v. State of West Bengal "Government action must be based on utmost faith, belief and ought to be supported with reason on the basis of the state of law -- if the action is otherwise or runs counter to the same the action cannot but be ascribed to be mala fide and it would be a plain exercise of judicial power to countenance such action and set the same aside for the purpose of equity, good conscience and justice." 12. R-5 to 14 despite service have neither filed their reply nor they chosen to appear before this Tribunal on any date of hearing.
13. In the present cases non-consideration of the applicants in the year 1995-2000, under no circumstances can be termed as a fairness in procedure adopted by the State. Applicants No. 24, 13 and 14 were senior to R 5-11 and as such were entitled to be considered under the zone of consideration if not prior to the R 5-11 then at least along with them which apparently has not been done. R 5-11, as noted hereinabove, were promoted to the post of ITO in the year 1995-1996.
The post in question being a selection post ought to have been filled by determining the correct zone of consideration. Since the contention raised by the applicants that there had been an excessive representation of SC category in the cadre of ITO as on 10.2.1995 i.e., the date of judgment of the Hon'ble Supreme Court in R.K. Sabharwal's case, the respondents were not justified in promoting these respondents based on roster points. Their statement made in the reply that these officials were promoted as ITO depending upon their seniority as they belonged to reserved category and reiterated in the impugned communication dated 25.1.2001 is misplaced and unjustified. Reliance on the CAG circular dated 23.1.1998 is also misplaced. The said circular dated 23.1.1998 particularly Para 5-C is applicable only in cases where the method of promotion is seniority-cum-fitness and not by selection.
The general candidates who were senior to R 5-11 were promoted much after these respondents were promoted to the post of ITO. Therefore, there cannot be any other findings except to conclude that these respondents were promoted in total defiance of the law laid down by the Supreme Court in R.K. Sabharwal's case as well as the O.M. issued by DOP&T dated 2.7.1997.
14. Since all the applicants except No. 17 as well as respondents as on date stand promoted to the post of Income Tax Officer, we do not wish to order R 5-14 reversion to the post of Income Tax Inspector. However, this would not justify to uphold their illegal and untenable promotion made to the higher cadre of ITO which have been made in complete defiance of the law and the rules on the said subject. Therefore, we direct the R-1 to 3 to review all the promotions made by them in the cadre of ITO since 10.2.1.995 till date based on the law so declared by the Constitution Bench of the Hon'ble Supreme Court in R.K. Sabharwal's case and accordingly rearrange the applicants as well as seniority of the respondents No. 5 to 14 besides similarly placed officials in the said cadre. The applicants will be entitled to all consequential benefits like fixation of pay, seniority etc., except to the arrears of pay and allowances from the date they would have been so promoted in terms of the direction issued hereinabove.
15. In view of the findings recorded hereinabove we allow the applications and direct the R-1 to 3 to hold Review DPCs and review all the promotions made in the cadre of ITO in the Karnataka Region made on or after 10.2.1995 and accordingly rearrange the appointment as well as the seniority of the officials. These directions shall be carried out as early as possible and in any case within a period of three months from the date of receipt of copy of this order. No costs.