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(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.

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."

(Emphasis supplied)

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:

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: