Judgment Naresh Kumar Sinha, J. 1. Since the filing of the M J. C. for initiating contempt proceeding subsequently converted into a writ petition, the controversies raised are now limited to only one question. Are the two petitioners both Deputy Commissioners of Commercial Taxes promoted as Joint commissioners vide notification dated 9-1-91 with effect from the date of notification (Annexure 4) are entitled to such promotion with effect from 12.4-88 and issue of appropriate writ, order or direction to the respondents for the same. 2. The case has a chequered history Both the petitioners belonged to the Bihar Finance Service While being posted as the Deputy commissioners of Commercial Taxes both become entitled to promotion to the rank of Joint Commissioner of Commercial Taxes some time in the year 1988 by virtue of their seniority and clean service record Under the relevant Rules there was reservation in promotion for the members belonging to the scheduled Castes and Scheduled Tribes to the extent of 14% and 10% respectively. However, with a view to deny the benefit of promotion to the petitioners, the State Government promoted officers belonging to the scheduled castes and Scheduled Tribes in excess of the quota reserved for them. The petitioners case is that both of them had been found fit for promotion as joint Commissioner of Commercial Taxes with effect from 12-4-88 by the departmental promotion Committee and they had been denied their due in the matter of promotion on account of the State promoting 7 officers belonging to Scheduled Castes and Scheduled Tribes as Joint Commissioners of Commercial taxes in excess of the quota reserved for them. The petitioners along with others filed Service Case No.261 of 1988 before the Bihar administrative Tribunal for their promotion to the rank of Joint Commissioner of commercial Taxes. Respondents 1 and 2 admitted before the Tribunal in the show case filed by them that members of the Schedule Castes and Scheduled tribes were promoted in exce-s of the quota permissible under the law. When the Tribunal became defunct with the retirement of its Chairman, the two petitioners filed C W. J. C. No.3183 of 1900 The respondents 1 and 2 in their counter affidavit before this Court accepted the grievances of the petitioners as just and legal. When the Tribunal became defunct with the retirement of its Chairman, the two petitioners filed C W. J. C. No.3183 of 1900 The respondents 1 and 2 in their counter affidavit before this Court accepted the grievances of the petitioners as just and legal. It was suggested that some shadow posts of joint Commissioner of Commercial Taxes could be created to facilitate the promotion of the petitioners. By order dated 19-9-90 (Annexure-1) passed in the aforesaid writ petition the respondent-State was directed to create requisite number of posts of Joint Commissioner of Commercial Taxes and to consider the cases of the petitioners on or before 15th November 1990. Subsequently on the prayer of the respondent-State the Court by its order dated 10-12-90 (Annexure-1/1) was pleased to extend the period up to 26th december 1990. 3. The petitioners in their supplementary affidavit narrated the events that took place subsequent to the expiry of the dead line i e 26th December 1990 fixed by the Court in C. W. J. C. No 3183 of 1990 for implementation of its direction. Three notifications all dated 9-1-91 were issued by the commercial Taxes Commissioner and copies thereof are Annexures 2, 3 and 4 Five officers belonging to the S. C. /s. T. who had been promoted as Joint commissioners by notification dated 12-4-88 (Annexure-2) were demoted with effect from the date of their promotion. By Annexure-3 five officers belonging to the general category were prompted as Joint Commissioners of Commercial taxes against the five vacancies created by the demotion of five officers of S C /s. T from the rank of Joint Commissioner, Commercial Taxes vide Annexure-2. The five officers by Annexure-3 were promoted with retrospective effect with the stipulation that they would not be entitled for arrears of pay although the benefit of fixation of pay would be given with effect from the date of promotion. By the 3rd notification (Annexure-4)seven officers of the rank of Deputy Commissioner. Commercial Taxes including the two petitioners as also two of the officers who had been demoted from the post of Joint Commissioner, Commercial Taxes by Annexure-2 were given ad hoc promotion for six months with effect from the date of notification. Both the petitioners have retired in 1991, petitioner No.1 by the end of May 1991 and petitioner No 2 by the end of January 1991. Both the petitioners have retired in 1991, petitioner No.1 by the end of May 1991 and petitioner No 2 by the end of January 1991. Their claim is that the respondent-State by not giving them the benefit of promotion with retrospective effect /. e. with effect from the due date some time in the year 1988 when they were found fit for such promotion by the Department promotion committee had acted in a mala fide manner only to deprive them of their retirement benefits. The petitioners stand is that requisite number of vacancies were available to enable the respondent-State to promote them as joint Commissioner of Commercial Taxes with effect from due date in the year 1988 when they were found fit for such promotion. 4. The Finance Secretary to the Government of Bihar respondent No.2 in his show cause which is now being treated as the counter affidavit denied that the direction of this Court contained in the order dated 19-9-90 passed in C. W J C 3183 of 1990 had been disobeyed The respondent referred to the counter affidavit filed on behalf of the State Government containing the statement that the Finance Department had initiated action for creation of certain number of posts of Joint Commissioner of Commercial Taxes for accomodating the senior superseded officers and that such a proposal was pending for approval of the State Government It is further stated that when the matter was examined in depth by the Finance Department and the Personnel department it was found that if the promotions wrongly given to the officers of the S C/s T. in 1988 were to be continued, as many as 37 posts of Joint commissioner of Commercial Taxes would be required to be created for accommodating the senior officers who had been superseded by them. The state Government, it was pointed out, after consideration found it to be against the public interest to create such large number of posts of senior officers when the actual strength of posts in the cadre was only 27. The state Government, it was pointed out, after consideration found it to be against the public interest to create such large number of posts of senior officers when the actual strength of posts in the cadre was only 27. The State government thought it wore expedient that persons who had been wrongly promoted should be instead reverted so that a wrong is corrected instead of being perpetuated and to save the State exchequer from huge amount of expenditure on account of creation of the posts The respondent admitted that a mistake bad been committed in calculating the number of posts available for being filled up on promotion from amongst the officers belonging to S C. /s. T as per quota reserved for them. It was pointed out that the mistake occurred due to the mistake in taking into account the carry forward posts prior to 1983 which had since lapsed as such carry forward post was permissible for three years only. This in turn caused error in fixation of roster points for S. C. /s T. officers In paragraph 6 of (he counter affidavit respondent no.2 has given the result of a detailed scrutiny of the roster register and relevant file for the period 1971 to 1983. The paragraph also gives the details how the mistake was committed in the year 1988 by clearing roster points 47 to 62 after taking into account the carry forward posts of reserve category since 1971. Since the five officers of the reserved category were wrongly promoted in the year 1988 in excess of the quota meant for them, the State Govt demoted them to do justice to the senior officers who had been superseded including the petitioners The State Govt at the same time promoted equal number of officers against the vacancies caused in the rank of the Joint Commissioner of Commercial Taxes by the demotion of the five officers who had been wrongly promoted. The respondent claims that the aforesaid decision of the State Govt. was submitted before this Court on 2-1-91 supported by an affidavit of the Commissioner. The respondent claims that the aforesaid decision of the State Govt. was submitted before this Court on 2-1-91 supported by an affidavit of the Commissioner. Commercial Taxes, with a prayar for time for implementation of the orders of this Court in the manner aforesaid The photostat copy of the petition filed in C W J. C.3183 of 1990 is Annexure-B to the counter affidavit It is stated that only thereafter on obtaining the approval of the Council of Ministers that the three notifications Nos.15, 16 and 17 dated 9-1-91 were issued within the time prayed for by the said petition. Copy of the three notifications are annexures-C, D and E corresponding to Annexures 2, 3 and 4. 5. The petitioners in their reply to the show cause (counter affidavit) of despondent No 2 claimed that the respondent on his own admission had taken a decision in the matter of promotion of the petitioners and implemented them in contravention of the orders of the Court without seeking the modification of the orders of this Hon ble court either by review or by way of appeal to the Hon ble Supreme Court. It is pointed out that the orders of this Court which had not been obeyed had been passed on the basis of statement on affidavits filed on behalf of the respondent-State itself before the Administrative Tribunal as well as before this Court By denying promotion to the petitioners with effect from 12-4-88 despite their being found fit for such promotion the respondents had by indirect method achieved the malafide object of not only depriving the petitioners of the arrears of pay but also higher retirement benefits This it is claimed, has been deliterately done by the respondent-State as the petitioners had moved this Hon dle Court several times for redress of their grievances. The subsequent promotion of two members of the SC/s. T who had been demoted from the rank of Joint commissioner of Commercial Taxes with retrospective effect vide Annexure-2 by notification vide Annexure-4 has been described as bad for there was no vacancy for filling up the post on promotion from the reserved quota as seven members of the S C /s T. were already holding posts against the reserved quota out of total strength of 27. In a subsequent counter affidavit filed on behalf of the opposite parties-respondents have taken position that the number of reserved caste officers after the promotion in April 1988 was 13 out of 30 and 14 out of 34 after the promotion in July 1988 It was mentioned that though the sanctioned strength of the cadre of Joint Commissioner of commercial Taxes was 27 only, a number of officers in excess of the sanctioned strength were promoted against the ex-cadre post available due to deputation in other departments and government undertakings The stand of the respondent is that even if the roster formula had been applied correctly in the normal course in the year 1988. the petitioners were not eligible for promotion with effect from either 12-4-88 or 20-7-88 as per their seniority and hence they had been rightly promoted with effect from the date of notification i. e.9-1-91. The counter affidavit concludes with the statement that in the Commercial taxes Department only ad hoc promotions are being given for the present on the direction of the Hon ble Supreme Court in Civil Appeal Nos 3670 and 3671 of 1988 The stand is that since the officers senior to the petitioners in the grade of Joint Commissioner of Commercial Taxes were still continuing on ad hoc basis the petitioners could not be given regular promotion with effect from the date of vacancy in the grade. 6. From the narration of the relevant facts given in the preceding paragraphs it is quite evident that the respondents have either admitted certain facts or they have not seriously challenged them There is no denial of the claim of the two petitioners that on the basis or their record of service the Departmental Promotion Committee had found them fit for promotion as Joint Commissioner of Commercial Taxes with effect from 12-4-88 The respondents have also admitted their mistake in promoting officers belonging to S C. /s T. to the rank of Joint Commissioner of Commercial Taxes in the year 1988 in excess of the reservation quota of 14% and 10% respectively fixed for them They also do not dispute that in C. WJ. C 3183 of 1990 earlier filed by these petitioners this Hon ble Court by order dated 19-9-90 had given a direction that the requisite number of post of Joint Commissioner of Commercial Taxes be created and the cases of the petitioners be considered on or before 15th November 1990. It is also not disputed that when the respondent State made a prayer for extending the aforesaid dead line, this Hon ble Court while extending the period till 26th December 1990 had specifically referred to the earlier order dated 19-9-90 whereby they had fixed 15th November 1990 as the date for creation of the post As already referred to earlier the respondent-State have given the factual background of their decision not to create necessary number of shadow post to accommodate the senior superseded officers who had suffered on account of wrong promotion of members of the S C /s T. in excess of the quota for reservation fixed for them and instead reverted/demoted such officers of the S. C. /s. T. who had been promoted wrongly by miscalculation of post available for such promotion. The explanation given by the respondent State that it had become necessary to do so because a creation of large number of shadow posts could have caused loss to the State excheguer and it was not desirable to perpetuate a wrong committed by promoting officers of the S C /s. r. in excess of their promotion quota by allowing them to continue on such posts. The State Government, it appears, in their wisdom chose to demote such of the officers of the S. C/s. T. promoted in excess of the reservation quota fixed for them and refrained from creating the necessary number of shadow posts The stand of the respondent-State is that the aforesaid Decision of the State Govt was brought to the knowledge of this Court by filing a petition in C W J C No.3183 of 1990 before the issue of necessary notifications dated 9-1-91 There is, however, no averment that any order was passed by this Court reviewing its earlier decision in the said writ petition directing the respondent-State to create the necessary number of shadow posts It may be mentioned that the necessary notifications dated 9-1-91 were issued. 7. 7. It appears that a few days before the above notifications were issued, the petitioners filed M J C. No.4 of 1991 on 2-1-91 for initiating a proceeding for contempt against the opposite parties for disobeying of the direction of this Court. It appears that a Division Bench of this court by order dated 2-8-91 expressed the view that it would be more appropriate on the dart of the petitioners to convert the application into a writ application under Article 226 of the Constitution. The views were expressed after having heard the learned counsel for the parties and after perusal of the show cause filed on behalf of the respondent No.2, The m. J C. was accordingly converted into the present writ application and the show cause filed on behalf of respondent Mo.2 was ordered to be treated as a counter affidavit. 8. Sri Karuna Nidhan Keshav learned counsel appearing for tbe petitioners argued that even a cursory glance at the admitted facts of this case is enough to prove the malafide mainly in which the respondent-State had victimised two petitioners in the matter of their promotion to the rank of the Joint Commissioner of Commercial Taxes only because they had moved the Bihar Administrative Tribunal and thereafter this Hon ble court for grant of appropriate relief against the State Govt. On the other hand mrs Sheema Ah Khan, learned S. C. IX supported the actions of the respondent-State as just and fair inasmuch as the State Govt did not hesitate to own its mistake in wrongly promoting the members of the S C. /s. T. in excess of the reservation quota fixed for them and to have corrected the mistake by demoting the concerned officers to the rank of the Deputy Commissioner of commercial Taxes. That the respondent State had no intention to disobey the earlier direction of this Hon bie court in the earlier write petition filed by these petitioners is emphasised by the fact that pursuant to the direction of the court the matter bad been considered at the highest level and the State Govt. That the respondent State had no intention to disobey the earlier direction of this Hon bie court in the earlier write petition filed by these petitioners is emphasised by the fact that pursuant to the direction of the court the matter bad been considered at the highest level and the State Govt. in their wisdom had decided not to create the necessary number of shadow posts to save the State exchequer from huge unnecessary expenditure and to correct a wrong instead of perpetuating it by demoting the officers to the rank of Deputy Commissioner, Commercial Taxes, who had earlier been wrongly promoted to the rank of Joint Commissioner, Commercial Taxes as evidence of the clear conscience of the respondent Stated it was pointed out that the decision of the State Govt on the lines indicated above had been stated in an affidavit filed before the court in the said writ petition even before issue of the three notification dated 9-1-91 Sri Keshav has also referred to the averments made by the petitioners in their affidavit supported by the necessary facts and figures suggesting that vacancies in the cadre of joint Commissioner of Commercial Taxes existed even in the year 1988 to enable the respondent-State to promote the petitioners with effect from the due date i e 12-4-88 or soon thereafter. Mrs, Khan on the other hand took tbe position that necessary vacancies in the cadre had been filled up by officers belonging to the general category who were senior to these petitioners and there existed no vacancy against which these petitioners could have been promoted with effect from the due dates She, however took the alternative plea that even if such vacancy existed, the petitioners like other officers of the service could not be given ad hoc promotion with effect from the due date i e 12-4 88 as claimed by them or against the vacancies occurring subsequent to that date. The stand of the respondent-State that ad hoc promotion could not be given with irrespective effect is assailed by the counsel appeaiipg for the petitioners on the ground that pronnctic n with such retrospective effect bad been given by the respondent-State ifself by notification (Annexure-3) issued on the same date on which the notification (Annexure-4) was issued promoting the petitioners with effect from the date of notification. 9. 9. The respondents stand that had there been a correct application of the roster formula in the year 1988, the petitioners given their seniority were not legible for promotion with effect front 12-4-88 or 20-7-88 has been strongly refuted with reference to facts and figures in the supplementary affidavit. The petitioners case is that 7 officers of the SC. /s. T. had been promoted in excess of the quota reserved from them and not 5 as was claimed by the respondents. Be that as it may, besides the 5 vacancies in the rank of Joint Commissioner, Commercial Taxes, caused by the demotion of an equal number of officers belonging to S C. /s T , the petitioners claimed that another 5 vacancies were available in the year 1988 itself. These 5 vacancies included one vacancy not filed up on 20-7-88 with effect from 1-10-88 on account of deputation of Sri L M. Lakra and Sri S P. Tiwary to excadre post, 4th on account of the death of Sri Hansdah on 8-10-88 and the 5th one on 31-10-88 with the retirement of Sri B N Sahay on that date. The petitioners have also given the details of 4 more vacancies, 1 in 1989 and 3 in 1990 due to the retirement of Sarvsbri D N. Gupta S. P. Srivastava and r. D. Sinha on 30-11-89, 31-5-90 and 30-11-90 respectively and the deputation of Sri D. D. Mundar to a non-cadre post on 28-11-90. Thus the total number of vacancies would work out to 14 including the 5 caused by demotion of officers with retrospective effect i t. with effect from 12-4-88 and 20-7-88 the dates of notification wrongly promoting them to the rank of joint Commissioner, Commercial Taxes These 14 vacancies do not include 2 posts which bad been filled up by Sarvshri D N Singhku and Bindeshwari prasad from among the 5 demoted officers of S. C. /s. T. category by the notification (Annexure-4) and which according to the petitioners were in excess of the quota reserved for them. If the 5 vacancies filled up from amoung the officers senior to the two petitioners vide notification (Annexure-3)are left out of the rekoning atleast 9 vacancies in the cadre of Joint commissioner of Commercial Taxes were available for promotion of officers from the general category from before 9-1-91 the date with effect from which the two petitioners were given ad hoc promotion. Both in the show cause and the counter affidavit the respondents while replying to the supplementary affidavit for describing the statement regarding the details of vacansies contained in paragraphs S, 6 and 7 is thoroughly misconceived. There is. however, no averments on behalf of the respondents deying the accrual of the vacancies with effect from different dates in specific terms. 10. Mrs Khan, however, argued that the two petitioners were entitled to ad hoc promotion only with effect from the date of issue of the notification i e.9-1-91 and not with effect from any earlier date even if the vacancy existed. The argument is based on the premise that unlike regular promotion which can be given with effect from the date of accrual of the vacancy, ad hoc promotion is always with effect from the date of notification Mrs Khan was only reiterating what had been specifically stated in paragraph 16 of the counter affidavit dated 8-4-91 and paragraph 6 of the counter affidavit dated 2-8-91 such an argument deserves to be rejected out right for the simple reason that the respondent-state by notification No 16 dated 9-1-91 (Annexure-3) gave ad hoc promotion to 5 officers senior to the petitioners with retrospective effect. The promotion was made effective from 12-8 88 for two while it was with effect from 20-7-88 for the remaining three The contention that giving retrospective effect to the promotion by Annexure-3 was due to substitution of names in notification Nos.466 and 1205 dated 12-4-85 and 20-7-88 is also tenable. The notification does not say so. It only purports to fill up the 5 of the 7 vacancies caused by the demotion of an enqual number of officers promoted by the aforesaid two notifications. The notification does not say so. It only purports to fill up the 5 of the 7 vacancies caused by the demotion of an enqual number of officers promoted by the aforesaid two notifications. That no such substitution as was being argued now on behalf of the State was intended is also obvious-from the fact that the notification Annexure-3 itself provided that the officers promoted with retrospective effect would not be entitled to arrears of pay with effect from the date of their promotion but would be entitled to the benefit of pay fixation with effect from such dates. Thus the notification Annexure-3 was essentially a notification giving ad hoc promotion with retrospective effect and any reference to notifications dated 12-4-88 and 20-7-88 referred to in the said Annexure by mention of notification no 15 dated 9-1-90 was only with the purpose of indicating the dates of vacancies that occurred on account of the demotion of the officers with effect from those dates If the State Govt can fill up certain vacancies in the rank of Joint Commissioner of Commercial Taxes with effect from the dates such vacancies existed on account of the reversion, there could possible be no difficulty in giving such retrospective promotion on ad hoc basis i e with effect from the dates on which such, vacancies occurred by death, retirement or posting to ex-cadre posts 11. The respondent-State has not produced any notification which bars in specific terms that ad hoc promotions cannot be given with retrospeclive effect. A reference to Finance Department Circular No.2014 dated 4-4-85 has been made in Annexure-3 only in the context that the officers given promotion with retrospective effect would not be entitled to arrears of pay but entitled to the benefits of the pay fixation with effect from the dates of promotion. On behalf of the respondent State reliance has been placed in two decisions of the Apex Court in AIR 1990 S C.442 where it was observed that promotion would be effective from the date of order of promotion and not from the date when promotional posts were created. The other decision cited reported in AIR 1991 SC 1244 refers to the well settled principle that no person can be promoted with retrospective effect from a date when he was not born in the cadre so as to adversely affect others. The other decision cited reported in AIR 1991 SC 1244 refers to the well settled principle that no person can be promoted with retrospective effect from a date when he was not born in the cadre so as to adversely affect others. It was contended on behalf of the petitioners that the aforesaid two decisions are not attracted in the facts and circumstances of the present case. Sri Keshav referred to a judgment dated 27th November 1991 of a learned single Judge of this Court in C. W. J C No.8083 of 1989. The petitioners in that case had filed the application for issuance of a writ in the nature of mandamus commanding the respondents to grant notional promotion to the senior selection grade of the bihar Administrative Service with effect from 19-12-72 as officers junior to the petitioners were given promotion and to grant all consequential benefits. The writ was allowed and the petitioner was held entitled to grant of senior selection grade from the due date and also all consequential benefits arising there from including the post retirement benefits The decision is of no help to the petitioners for admittedly no one junior to them in the general category had been promoted to the rank of Joint Commissioner of Commercial Taxes and all the 5 officers promoted vide notification (Annexure-3) were admittedly senior to them. 12. Some unique feature of this case cannot be lost sight of. The petitioners had challenged the decision of the State Govt. promoting members of S C IB T. as Joint Commissioner, Commercial Taxes, in excess of the reservation quota by moving the Bihar Administrative Tribunal in the year 1988 itself. When the Tribunal became defunct both the petitioners filed a writ petition in 1990 praying for the same relief i. e. grant of promotion Both before the Tribunal and in the earlier writ petition the State Govt admitted the wrong done by them in the matter and promised action to remove the grievances of the petitioners in the matter of denial of their promotion The state Govt. went to the extent of suggesting creation of shadow posts for accomodation the petitioners and un the basis of which certain directions were given by the court in the earlier writ petition which for some reason could not be complied with. went to the extent of suggesting creation of shadow posts for accomodation the petitioners and un the basis of which certain directions were given by the court in the earlier writ petition which for some reason could not be complied with. If the requisite number of shadow posts could not be created even in pursuance of the direction contained in the orders passed in the earlier writ petifion, the least the State Govt. could have done was to promote the two petitioners with effect from 12-4-88 when both were found fit for such promotion by the Departmental promotion Committee or if no such vacancy existed on that date, with effect from subsequent date/dates. All said and done there could possibly be no justification for the State Govt. not to give benefit of such ad hoc promotion to the two petitioners with effect from the dates the necessary vacancies were available for their promotion when by notification No.16 (Annexure-3) issued on the same date they had given benefit of such ad hoc promotion with effect from the date of accrual of such vacancies to 5 officers senior to the petitioners If the two petitioners had been treated in the same way as their 5 senior colleagues with the necessary stipulation that they would not be entitled to arrears of salary but entitled to the benefit of pay fixation with effect from the dates of such promotion, the petitioners would not have been deprived of their retirement benefits. 13. One of the contentions raised by the petitioners is that as 7 officers of the S. C /s,t. had been promoted as Joint Commissioner of Commercial taxes in 1988 in excess of the reservation quota fixed for them, all 7 and not only 5 should have been demoted. The petitioners have given the neccessary details to show that the saturation poin for such promotion against the reservation quota had been reached before the promotion of the above 7 officers. This is disputed by the respondent-State. Their stand is that the remaining 2 officers were not demoted because posts were available for them in the promotion quota. The petitioners have given the neccessary details to show that the saturation poin for such promotion against the reservation quota had been reached before the promotion of the above 7 officers. This is disputed by the respondent-State. Their stand is that the remaining 2 officers were not demoted because posts were available for them in the promotion quota. In the second supplementary affidavit dated 14-2-94 the petitioners stated that vide memo No.3642 dated 4 5-84 a copy of which is Annexure-5 the strength of the cadre of Joint Commissioner of commercial Taxes was fixed at 27 and that prior to 12-4-88, 17 persons were holding the post of Joint Commissioner of Commercial Taxes Out of them 4 persons were posted on posts outside the cadre of Bihar Finance Service and of the remaining 13 persons, 3 officers belonged to Scheduled Castes and another 3 belonged to Scheduled Tribes. The names of the 6 officers belonging to S. C. /s. T. have been mentioned in paragraph 5 of the supplementary affidavit. The petitioners contention is that with the promotion of one officer belonging to Scheduled Castes on 20-7-88 no more vacancies existed and hence the promotion made on 7 posts was in excess of the quota fixed for such promotion. The petitioners contention is that the State admitted that 7 persons were promoted on reservation quota beyond the prescribed percentage for such reservation before the Bihar Administrative tribunal as also in C W. J. C. No.3183/90 A copy of the counter affidavit filed by the State in the above writ petit on has been annexed as Anoexure-7. Learned counsel for the petitioners referred to the statements made in paragraph 11 of the said counter affidavit. All that was stated in the said paragraph was that the department had initiated action for creation of certain number of posts of Joint Commissioner of Commercial Taxes for accomodating the superseded senior officers. There is no specific statement made in the counter affidavit admitting that 7 posts had been filled up by promotion in excess of the quota reserved for such promotion. There is no specific statement made in the counter affidavit admitting that 7 posts had been filled up by promotion in excess of the quota reserved for such promotion. Learned counsel for the petitioners in this connection argued that once the saturation point was reached by the required number of officers of the S. C/s. T. holding the post against the reservation quota, the roster fixed by the State could not be made the basis for any further promotion from the category of S C /s. T. officers. In that connection he referred to a judgment dated 10-2-95 of the Apex Court in R. K. Sabharwal and on V/s. State of Punjab andors. reported in "judgment today" 1995 (2) S C page 351. A five judge Bench of the Court held that in the matter of promotion against reserved quota once the reserved quota is achieved there will not be further reservation and thereafter persons belonging to S. C. /s T. would be promoted to the higher post only when there is a vacancy in the reserved quota. In other words once the percentage of reserved quota is reached; no further promotion on the basis of the reservation shall be made by reference to the roster point and such reservation would be possible only a vacancy occurs in the reserved quota. The State in its counter affidavit dated 27-4-94 has denied that this Hon ble Court has been misled at any point of time and as only 5 officers were promoted in excess of the reservation quota, only 5 had been demoted. The State has also taken an objection to the petitioners challenging this aspect of the case by filing a supplementary affidavit. In my considered view if the petitioners wished to challenge the promotion of the 2 officers not demoted in the present writ application, they should have atleast joined them as respondents. Not having done so they cannot be permitted to raise the issue in their absence. 14. In my considered view if the petitioners wished to challenge the promotion of the 2 officers not demoted in the present writ application, they should have atleast joined them as respondents. Not having done so they cannot be permitted to raise the issue in their absence. 14. Thus for the reasons mentioned above both the petitioners are found entitled to their ad hoc promotion with effect from the date/dates from which vacancies were available in the cadre for such promotion with the stipulation, as in the case of their 5 senior colleagues vide notification annexure-3, that they will not be entitled to draw the arrears of pay with effect from the date/dates of their promotion with retrospective effect, but they would be entitled to the fixation of their pay with effect from those dates for the purpose of calculation of their retirement benefits including gratuity. The State Govt. is directed to issue appropriate orders within a period of three months from the date of receipt/production of a copy of this order. Both the petitioners who had been forced to litigation ever since 1988 cannot possibly be fully compensated for the loss suffered by them They are therefore, entitled to the cost of this litigation which is quantified at Rs.5,000. As a necessary consequence notification No.17 dated 9-1-91 (Annexure-4) in so far it makes the promotion of the petitioners effective from the date of issue of the notification will be deemed to have been quashed. The writ application is thus allowed to the extent mentioned above with costs. Petition allowed