T. MUDALAGIRIYAPPA Vs. UNION OF INDIA

JUDGEMENT

(1.) THE above applications are filed by 10 applicants challenging the legality and propriety of the impugned order bearing No. 212(17)/2013 -14/CCIT -I dated 28.8.2013 (Annexure A6) passed by the Chief Commissioner of Income Tax Bangalore (respondent No. 3) so far as it pertains to the applicants herein. We have heard the learned Counsel for the parties.

(2.) THE admitted facts from either side are that this Tribunal had disposed of the OA Nos. 1724/2001 and 1753 to 1775/2001 on 17.1.2003 in the case of Shri Sajithkumar P. and 23 Others and directed the respondents 1 to 3 to hold review DPCs and review all the promotions made in the cadre of ITO in the Karnataka Region on or after 10.2.1995 and accordingly rearrange the appointment as well as seniority of the officials. These directions shall be carried out as early as possible in any case within a period of three months from the date of receipt of copy of the order. Subsequently respondents issued a Memorandum dated 15.6.2004 based upon the judgment rendered by this Tribunal in the aforesaid O.As. decided on 17.1.2003. One Shri Dharmaraj P. Khode filed OA 510/2004 and Shri Sajithkumar P. and 8 others filed OA 740 and 760 to 767/2004 challenging the O.M. dated 11.7.2003 as well as the said Memorandum dated 15.6.2004. The said OAs were disposed of in terms of the directions given in the earlier OAs and quashed the said OM dated 11.7.2003 as well as 15.6.2004, directing the respondents to review the promotions made to cadre of ITO in Karnataka Circle in terms of the directions issued by this Tribunal on 17.1.2003 as well as the observations made therein. This exercise shall be completed within a period two months from the date of receipt of the order. The above mentioned orders were passed relying on the judgment of the Hon'ble Supreme Court in the case of R.K. Sabharwal and Others v. State of Punjab and Others, : 1995 (3) SLJ 227 (SC) : AIR 1995 SCW 1371. In view of the said judgment of the Hon'ble Supreme Court, DOP & T issued OM dated 2.7.1997 in respect of reservation roster - -post based - -implementation of the Supreme Court judgment in the case of R.K. Sabharwal (supra). Subsequently DOP & T issued another OM dated 11.7.2002 in respect of reservation in promotion - -Treatment of SC/ST candidates promoted on their own merit. Subsequent to the said OM dated 11.7.2002, the Government of India, Ministry of Finance, Department of Revenue/CBDT issued an order dated 6.10.2003 for implementation of the OM dated 11.7.2002 and clarification was issued on the subject treatment of SC/ST candidates promoted on merit in terms of DOP & T OM dated 11.7.2002, the matter has been considered in consultation with DOP & T. To determine whether the SC/ST candidates falling in the consideration zone cannot be denied promotion on the plea that no post is reserved for them. When no post is reserved, SC/ST candidates falling in the consideration zone should be considered for promotion along with other candidates treating them, as if they belong to general category. If any of them is selected, he should be appointed to the post and should be adjusted against unreserved point. Candidates so promoted are treated as promoted on their own merit. To determine whether an SC/ST candidate in the consideration zone can be promoted or not when there are no reserved posts, it should be seen whether the candidate would have been promoted if he did not belong to SC or ST category. If yes, he should get promotion otherwise not. Subsequently on 10.8.2010 the DOP & T issued OM on the subject reservation in promotion treatment of SC/ST candidates promoted on their own merit. The said OM was issued based on the decision of the CAT, Madras Bench in OA 900/05 (S. Kulagasalamoorthy v. Union of India and Others). It was held that when a person is selected on the basis of his own merit, the scope of considering and counting him against quota reserved for SC/ST does not arise. The said view has been upheld by the Hon'ble High Court of Judicature at Madras in the matter of Union of India v. S. Kulagasalamoorthy, W.P. No. 15926 of 2007. It is clarified that ST/SC candidates appointed by promotion on their merit and seniority and not owing to reservation or relaxation of qualifications will be adjusted against any reserved points of reservation roster irrespective of the fact whether the promotion is made by selection or non selection method. The said order will have effect from 2.7.1997, the date on which the post based reservation was introduced. The official respondents have published the seniority list of Inspectors of Income Tax as on 1.9.2006 (Page 185 to 196 of OA). Seniority List of Income Tax Officers as on 1.1.2012 was also published (Page 197 to 206 of OA). The Ministry of Finance had published the Recruitment Rules (RR) called Income Tax Officers (Group B Posts) Recruitment Rules, 1999. Under the said rules there is a provision for promotion. The said Recruitment Rules were modified by the recruitment rules called Ministry of Finance, Department of Revenue, Income Tax Officers (Group B) Posts Recruitment Rules, 2004. Under the said RR there is a provision for promotion to the post of Income Tax Officers. The feeder cadre for promotion as ITO was, Inspector of Income Tax in the scale of pay Rs. 6500 -10500 with three years regular service in the grade and subject to fulfillment of Note 1 and 2 therein. Subsequently the said RR was amended by the Ministry of Finance. The said rules called Ministry of Finance, Department of Revenue Income Tax Officers (Group B Posts) Recruitment (Amendment) Rules, 2005. Column 12 was modified as under:

(3.) BEING aggrieved by the orders of this Tribunal in OA 510/2004 & OA 740 and 760 to 767/2004 dated 17.8.2005 one Shri Madesha N.M. and 9 others filed Writ Petition No. 2758/06 (S -CAT) before the Hon'ble High Court of Karnataka. The Hon'ble High Court was pleased to dispose of the Writ Petition with direction to the petitioner therein to approach this Tribunal for redressal of their grievances.