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2012 DIGILAW 2139 (MAD)

Union of India v. M. S. Badrinathan

2012-04-27

ELIPE DHARMA RAO, M.VENUGOPAL

body2012
Judgment :- The Petitioners/Respondents have projected the present Writ Petition as against the Order dated 23.07.2009 in O.A.No.472 of 2008 passed by the Central Administrative Tribunal, Madras Bench. 2. The Central Administrative Tribunal, Madras Bench, while passing the Order in O.A.No.472 of 2008 dated 23.07.2009 (filed by the Respondent/Applicant), has among other things observed that “the junior to the Respondent/Applicant has already been given promotion under the physically handicapped category and therefore, deem it appropriate to give a direction to the Respondents (Writ Petitioners) to consider the case of the Respondent/Applicant for promotion as Inspector of Central Excise and Customs under the physically handicapped quota and promote him from the date from which the junior has been promoted under the same category and granted two months time to complete this exercise andfurther, directed to pass an appropriate order with all consequential benefits.” 3. According to the Learned Counsel for the Petitioners/ Respondents, the Data Entry Operators (DEO), Grade-B, were re-designated as STA only with effect from 20.01.2003 and prior to that DEOs were not at all in the reckoning for promotion to Inspector as DEO cadre was not a feeder cadre for Inspector. 4. It is the further contention of the Learned Counsel for the Petitioners/Respondents that the Respondent/Applicant was ranking 31 in the seniority list of STA as on 01.01.2006 was only working as DEO, Grade B as on 01.01.2001, 01.01.2002 and 01.01.2003 i.e, the crucial dates for determining the eligibility for promotion in respect of vacancy years 2001-2002, 2002-2003 and 2003-2004 and therefore, he cannot be considered eligible for the 3% reservation for Physically Handicapped candidates which was only available between the period 31.05.2001 and 11.12.2003. 5. The Learned Counsel for the Petitioners/Respondents submits that as per the provisions of Recruitment Rules, 2002, for Inspectors, which provides for STAs with two years of regular service only are eligible for consideration for promotion. But, the Tribunal has failed to appreciate this fact in proper and real perspective. 6. Yet another submission of the Learned Counsel for the Petitioners/Respondents is that though the promotion order of Ananda Padmavathy is dated 21.05.2008. It is notionally effective from 19.12.2002 as she was promoted against the vacancy year 2002-2003 under the 3% reservation for physically handicapped candidates and the promotion was considered in her capacity as pre-structured Tax Assistant, which was a feeder cadre for Inspector on 19.12.2002. It is notionally effective from 19.12.2002 as she was promoted against the vacancy year 2002-2003 under the 3% reservation for physically handicapped candidates and the promotion was considered in her capacity as pre-structured Tax Assistant, which was a feeder cadre for Inspector on 19.12.2002. Further, the Respondent/Applicant was only working as DEO Grade B on 19.12.2002 and therefore, he cannot be considered for promotion to the grade of Inspector as DEOs were not a feeder cadre for promotion to the grade of Inspector on 19.12.2002. 7. It is the contention of the Learned Counsel for the Petitioners/ Respondents that the Administrative Tribunal failed to take into consideration that Ananda Padmavathy was shown junior to the Respondent/Applicant in the STA seniority list 2006, due to the fact that as per the Recruitment Rules for STAs, the UDCs were to be placed junior to the DEO Grade B and that her case could not be considered in view of the disability and further, had she been promoted as Inspector on 19.12.2002 itself, her name would not have figured in seniority list for STA issued in 2006, as she would cease to exist in the Ministerial cadre (UDC/TA/STA). Therefore, it is also contended on behalf of the Respondent/Applicant that the seniority referred to by the Respondent/Applicant, has no impact on the promotion of Ananda Padmavathy and the concept of junior being given promotion does not arise. 8. Finally, it is the plea of the Petitioners/Respondents that the Tribunal failed to consider the aforesaid issues by way of Review Application filed before it and even by way of corrigendum, it rectified only one mistake apparent on record and not considered the other mistakes. 9. Per contra, it is the submission of the Learned Counsel for the Respondent/Applicant that the Respondent/Applicant is presently working as Senior Tax Assistant in the Chennai II Commissionerate and that he has been earlier appointed as Data Entry Operator Grade B in April 1997 and later, he was merged into the post of Senior Tax Assistant with effect from 20.01.2003 pursuant to a massive cadre restructuring which has taken place in the Central Excise Department and more over, he is a physically handicapped person viz., one of his legs beingaffected. 10. 10. The Learned Counsel for the Respondent/Applicant urges before this Court that the next higher post to that of Senior Tax Assistant is the post of Inspector of Central Excise and for promotion as Inspector, a Senior Tax Assistant is to have two years of service and since the post of Senior Tax Assistant was a newly created post with effect from 20.01.2003 after merging erstwhile posts such as Data Entry Operator and other Ministerial posts, it is specifically mentioned in the Senior Tax Assistant Recruitment Rule that service rendered in the erstwhileposts prior to the merger would be consideredfor the purpose of computing eligible service of the promotion to the next higher post and by virtue of this rule, the Respondent/Applicant is immediately eligible for promotion as Inspector with effect from 20.01.2003 itself. 11. It is the submission of the Learned Counsel for the Respondent/ Applicant that the post of Inspector of Central Excise, as per Notification issued by the Ministry of Social Justice and Empowerment as per Section 32 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, to be a post which can be filled up by the physically handicapped persons and the notification has come into force on 31.05.2001 and as such, there is a separate quota of 3% which is reserved for physically handicapped persons. 12. The Learned Counsel for the Respondent/Applicant contends that clarifications have been issued by the 2nd Petitioner/2nd Respondent on 05.06.2006 and 27.11.2006, whereby individuals with one affected leg, one affected arm or partially hearing impaired with assistive devices can be considered for promotion for the post of Inspector against the 3% quota reserved for physically handicapped persons. 13. The Learned Counsel for the Respondent/Applicant brings it to the notice of this Court that the Petitioners/Respondents have not considered the case of the physically handicapped persons and therefore, similarly situated persons filed Writ Petitions before the Honourable High Court at Madurai and the said Writ Petitions are allowed and directions have been issued to consider the case of the physically disabled Senior Tax Assistant for promotion as Inspector. Pursuant to the direction, the 2nd Petitioner/2nd Respondent passed an order dated 11.03.2008 stating that the physically handicapped persons can be considered and may be allowed to join as Inspector provisionally subject to their passing the physical test at a later stage, after the new physical parameters for the physically handicapped category are evolved in consultation for NIOH, Kolkata. 14. The Learned Counsel for the Respondent/Applicant contends that the 1st Petitioner/1st Respondent issued a letter dated 01.04.2008 to all Commissioners of Central Excise quoting the earlier orders of the High Court and the Honourable Supreme Court of India calling for details of all physically handicapped Officers, who were eligible to be considered for promotion as Inspector between the period 31.05.2001 (date of notification of the Ministry of Social Justice and Empowerment identifying the post of Inspector as eligible under 3% quota) and 11.12.2003 (date on which the post of Inspector was classified as Group B (non-gazetted) and that the Respondent/Applicant has been under the bona fide impression that his name would also be forwarded for consideration. 15. The Learned Counsel for the Respondent/Applicant submits that on 07.04.2008, the 2nd Petitioner/2nd Respondent issued a letter to all Cadre Controlling Authorities bringing to their notice the Interim Order passed by the Honourable Supreme Court in S.L.P.No.CC No.5272 – 5284 of 2008, wherein the issue relates to the inter se seniority in the post of Senior TA and TA and that the Honourable Court directed that promotions can be effected on the basis of the recruitment rule for the post of Senior TA and the same would be subject to the result of the Appeal. Therefore, the Department in supercession of its earlier instructions whereby it was decided not to operate the posts of Sr TA and Inspector for effecting promotion until further orders, directed that necessary action may be takento fill up the vacancies available under promotion quota in the cadre of SrTA and Inspector as per the existing recruitment rules. Therefore, the Department in supercession of its earlier instructions whereby it was decided not to operate the posts of Sr TA and Inspector for effecting promotion until further orders, directed that necessary action may be takento fill up the vacancies available under promotion quota in the cadre of SrTA and Inspector as per the existing recruitment rules. The grievance of the Respondent/Applicant is that by an order dated 21.05.2008, one of his junior in the cadre of Senior Tax Assistant, S.Ananda Padmavathy has been promoted as Inspector of Central Excise and that the Respondent/Applicant made a representation to the 1st Petitioner/1st Respondent for which no reply has been issued and consequently, the O.A.No.472 of 2008, praying for issuance of a direction to the Petitioners/Respondents to consider the case of the Respondent/Applicant for promotion as Inspector of Central Excise under the physically handicapped quota and promote him from the date, his junior was promoted and granting of consequential benefits. 16. From the perusal of the common reply filed by the Petitioners/Respondents, it transpires that it is a fact that clarification was sought from the Board as per office letter C.No.II/39/113/2003- CF (CCA), dated 10.11.2006, for physically handicapped category candidates in promotions after the post of Inspector was re-classified as Group B Non-Gazetted with effect from 11.12.2003 and also that, the Board as per letter F.No.A.12304/62/2005-Ad.III B, dated 25.09.2007 clarified that reservation for physically handicapped candidates in promotion is available with effect from 31.05.2001 i.e., the date of issue of Notification by the Ministry of Social Justice and Empowerment and up to 11.12.2003 (when the post was re-classified as Grade B non-gazetted). Also, the classification issued on 27.11.2006 is for inclusion of persons with disability of one arm affected and partially hearing impaired with assistive devices in consideration for promotion to Inspector under the 3% reservation. 17. In the common reply before the Tribunal, it is also averred by the Petitioners/Respondents that as per Board's letter F.No.C.18013/04/2008, AD.IIIB, dated 11.03.2008, the physically handicapped persons were allowed to be promoted provisionally subject to their passing the physical test after the new parameters are evolved in consultation with NIOH, Kolkata and that the said Writ Petition was dismissed by the Madurai Bench of Madras High Court on 25.07.2008, since the Respondent/Applicant's case was considered and order passed during the pendency of the Writ Petition. 18. 18. The plea of the Petitioners/Respondents is that the Petitioner/Respondent office as per letter dated 01.04.2008 called for details of all physically handicapped Officers who were eligible to be considered for promotion as Inspector between the period 31.05.2001 and 11.12.2003, but, the Respondent/Applicant's name has not figured in the report of Chennai II Commissionerate, where he is working since the proof regarding nature and extent of disability and his eligibility to be considered was not furnished and that he obtained his Medical Certificate of disability only subsequent to the said selection. 19. The Learned Counsel for the Petitioners/Respondents contends that as per Clause (b) of the Board's instructions in F.No.A-12034/62/2005-Ad.III B, dated 25.09.2007, physically handicapped officers can be considered for promotion to the grade of Inspectors against 3% reservation only during the period 31.05.2001 to 11.12.2003 and since the Respondent/Applicant was serving only as Data Entry Operator, Grade B, as on 01.01.2001, 01.01.2002 and 01.01.2003 namely the crucial dates for determining the eligibility for promotion for the vacancy years 2001-2002, 2002-2003 and 2003-2004, he is not to be considered as eligible for 3% reservation which is available only between 31.05.2001 and 11.12.2003. 20. Another stand of the Petitioners/Respondents is that the Respondent/Applicant has not passed the Departmental Examination for Inspectors, which is a pre-requisite factor for being considered for promotion to the Grade of Inspector. 21. Lastly, the Learned Counsel for the Petitioners/Respondents projects an argument that S.Ananda Padmavathy though a junior to the Respondent/Applicant as STA, is a candidate who was appointed as Upper Division Clerk and is not eligible for promotion as Inspector as she belonged to a feeder cadre for promotion to the grade of Inspector. But, she was not considered for promotion in view of the disability and later, as per the orders of the Ministry of Social Justice and CBEC, she was promoted against vacancies for the year 2002-2003, as per Clause (a) of the Recruitment Rules for the post of Inspector, where DEO/STA is not a feeder cadre. 22. Admittedly, the Respondent/Applicant has been appointed as Key Punch Operator under the physically handicapped category. When that being the fact, it is strange that the Petitioners/Respondents have insisted the Respondent/Applicant to produce fresh medical proof in regard to the nature and extent of disability. 22. Admittedly, the Respondent/Applicant has been appointed as Key Punch Operator under the physically handicapped category. When that being the fact, it is strange that the Petitioners/Respondents have insisted the Respondent/Applicant to produce fresh medical proof in regard to the nature and extent of disability. As a matter of fact, when the Respondent/Applicant has joined the service as physically handicapped persons with one leg being affected, he continues to remain so and the contra stand taken by the Petitioners/Respondents is devoid of substance, in our considered opinion. 23. The Central Administrative Tribunal, while allowing O.A.No.472 of 2008 (filed by the Respondent/Applicant) on 23.07.2009 in Para 10 of its order has quoted the Departmental letter No.F.No.A.34011/16/2003-AD.III.A, dated02.02.2006, which runs as follows: “The Board has considered the matter in its meeting held on 30.01.2006 and has decided that in all commissionerates the persons who have been promoted on adhoc basis without passing the departmental examination or those who were promoted and subsequently reverted on failing to pass the departmental examination may be given one more chance to pass the said examination by 30th June 2006. DG, NACEN is being requested to conduct the departmental examination so that the process of holding the exam and declaring the results is completed latest by 30.06.2006.” and has proceeded to opine that when the Department has provided an opportunity to the failed candidates, who were given one more chance, it will not be in the fitness of the things to deny promotion to the applicant, who has already passed the examination. Even otherwise, like other candidates, physically handicapped candidates also can be given some more opportunity to pass the examination if that is necessary. Viewed in that perspective, it rejected the contention of the Petitioners/Respondents that the Respondent/ Applicant on the prescribed date has not passed the examination, since the same is not relevant because he has passed the examination later. Accordingly, the Tribunal has issued a direction to the Petitioners/Respondents to consider the case of the Respondent/ Applicant for promotion as Inspector of Central Excise and Customs under the physically handicapped quota and promoting him from the date, his junior has been promoted under the same category, fixing two months time to complete this exercise, etc. 24. Accordingly, the Tribunal has issued a direction to the Petitioners/Respondents to consider the case of the Respondent/ Applicant for promotion as Inspector of Central Excise and Customs under the physically handicapped quota and promoting him from the date, his junior has been promoted under the same category, fixing two months time to complete this exercise, etc. 24. The Petitioners/Respondents (Department) filed Review Application in O.A.No.472 of 2008 before the Central Administrative Tribunal, Madras Bench, to review the order dated 23.07.2009 passed in O.A.No.472 of 2008 and the Tribunal has observed that 'from the records, it is seen that there is an apparent error in para 5 of the order. We therefore correct the sentence - “the Respondent states that applicant is fully eligible for promotion ...” and “... the applicant should be granted promotion as Senior Tax Assistant in the Central Excise” as follows: “the applicant states that applicant is fully eligible for promotion...” and “... the applicant should be granted promotion as Inspector in the Central Excise” and directed the Registry to issue corrigendum and further, it found that there were no error apparent on record and consequently, dismissed the Review Application by circulation. 25. According to the Learned Counsel for the Petitioners/Respondents, the Respondent/Applicant has been initially appointed on 02.01.1987 as Data Entry Operator, Grade A and that as Data Entry Operator Grade A, his appointment was confirmed on 11.09.1991 and further, he was appointed as Data Entry Operator Grade B from April 1997 and that he has became eligible to be considered for the post of Inspector as against physically handicapped category only on his fulfilling the eligibility set out in Column 12(i). Further, he is not in the feeder category for the post of Inspector up to 11.12.2003 and therefore, he is not considered for the post of Inspector under the physically handicapped category either for vacancy arising on 01.01.2002 or 01.01.2003. Moreover, the Respondent/Applicant was reclassified as Senior Tax Assistant with effect from 20.01.2003 following the Recruitment Rules for Senior Tax Assistants dated 16.01.2003. 26. Moreover, the Respondent/Applicant was reclassified as Senior Tax Assistant with effect from 20.01.2003 following the Recruitment Rules for Senior Tax Assistants dated 16.01.2003. 26. It is the contention of the Learned Counsel for the Petitioners/ Respondents that S.Ananda Padmavathy was initially appointed as Upper Division Clerk (Special Pay) on 17.07.1993 and her appointment as Upper Division Clerk was confirmed on 24.06.1996 and that she was promoted as Tax Assistant on 06.09.2001 as per old rules and she is eligible to be promoted as Inspector on completing 5 years as Upper Division Clerk and Tax Assistant i.e., 06.09.2001 and she is eligible to be promoted as Inspector on completing 5 years service as Upper Division Clerk i.e., 26.03.2001 and notionally, she was promoted as Inspector of Central Excise on 19.12.2002 following the Order No.57/2008, dated 21.05.2008 (as against the vacancy arising on 01.01.2002). 27. The Rule 7 of the Central Excise and Land Customs Department Inspector (Group 'C' posts) Recruitment Rules, 2002, as per Notification dated 29.11.2002, Department of Revenue, New Delhi, in F.No.A-12018/4/2002-Ad.III(B), Schedule reads as follows:- “Table” 28. The Gazette Notification dated 16.01.2003 in respect of Rules, Central Excise and Customs Department Senior Tax Assistant (Group 'C' posts) Recruitment Rules, 2003 (as per F.No.A-12018/17/2002-AD-III(B), Rule 5 under the caption 'Initial Constitution' enjoins as follows: “5. Initial Constitution.-(i)All the persons appointed on the regular basis at the time of commencement of these rules to the Grade of Assistant, Tax Assistant, Upper Division Clerk (Special Pay), Data Entry Operator Grade 'B' and 'C' shall be deemed to have been appointed as Senior Tax Assistants under these rules. The service rendered by them before commencement of these rules shall be taken into account for deciding the eligibility for promotion to the next higher grade. (ii) Assistants (Rs.5000-8000) and Data Entry Operator Grade 'C' (Rs.5000-8000) are being redesignated as Senior Tax Assistants in the same scale of pay. Therefore, the Assistants and Data Entry Operator Grade 'C' shall be placed enblock senior to the other categories. However, their inter se placement shall be done according to the date from which they had actually been appointed to these grades on regular basis subject to the condition that their inter se placement in their respective category shall not be altered. Therefore, the Assistants and Data Entry Operator Grade 'C' shall be placed enblock senior to the other categories. However, their inter se placement shall be done according to the date from which they had actually been appointed to these grades on regular basis subject to the condition that their inter se placement in their respective category shall not be altered. (iii) The Data Entry Operator Grade 'B' (4500-7000) and Tax Assistants (4500-7000) have been placed in their higher scale of 5000-8000 and they shall be placed below the Assistant and Data Entry Operator Grade 'C' and their inter se placement shall be fixed in accordance with the date of regular appointment to the respective grade subject to the condition that their inter se placement in respective category shall not be disturbed. (iv) Upper Division Clerk with special pay shall be placed below Assistant, Data Entry Operator Grade 'C', Data Entry Operator Grade 'B' Tax Assistants. (v) The present employees would be required to pass the required or suitable departmental examination, as specified by the Competent Authority, from time to time, in computer application and relevant procedures within two years failing which they would not be eligible for further increments.” 29. We deem it appropriate to quote Section 32 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, which reads as follows: “32. Identification of posts which can be reserved for persons with disabilities.-Appropriate Governments shall - (a) identity posts, in the establishments, which can be reserved for the persons with disability; (b) at periodical intervals not exceeding three years, review the list of posts identified and up-date the list taking into consideration the developments in technology.” 30. Also, we aptly point out Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, which reads hereunder: “33. Also, we aptly point out Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, which reads hereunder: “33. Reservation of posts.-Every appropriate Government shall appoint in every establishment such percentage of vacancies not less than three per cent, for persons or class of persons with disability of which one per cent, each shall be reserved for persons suffering from- (i) blindness or low vision; (ii) hearing impairment; (iii) locomotor disability: in the posts identified for each disability: Provided that the appropriate Government may, having regard to the type of work carried on in any department or establishment, by notification subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.” 31. The Director, AD.III.B., in F.No.A-12034/62/2005-Ad.III(B), of Government of India, Ministry of Finance, Department of Revenue, Central Board of Excise and Customs, addressed to All Chief Commissioners of Central Excise, All Chief Commissioner of Customs and All Director Generals/Directors under CBEC, has informed that it has been decided by the Board that persons with one leg affected or one arm affected, or partially hearing impaired with assistive devices can be considered for appointment/promotion to the post of Inspector/P.O./Examiner against 3% quota for physically handicapped persons in Central Excise and Customs Departments. 32. The Under Secretary to the Government of India, Ministry of Finance, Department of Revenue, Central Board of Excise and Customs in F.No.A-12034/62/2005-Ad.III B, dated 25.09.2007, New Delhi, addressed to All Cadre Controlling Authorities under CBEC, on the subject of reservations for Orthopaedically Handicapped Persons in Recruitment/Promotion to the posts of Inspector (Central Excise), Inspector (PO), Inspector (Examiner) under Central Excise and Customs Department, has clarified as thus: “a) In case of Direct Recruitment, the reservation shall be applicable w.e.f. 31.05.2001 i.e. the date on which Notification No.16-25/99-NH, dated 31.05.2001 of the Ministry of Social Justice & Empowerment (vide which the post of Inspector was identified) was published in the Official Gazette. b) In case of Promotions, the reservation shall be applicable w.e.f. 31.05.2001 (i.e. the date indicated in (a) above) upto 11.12.2003, i.e. the date when the post of Inspector was reclassified as Group-B non-gazetted post. No reservation shall apply thereafter. This is because as per the DOPT Instructions, reservations are applicable to Group-C & D posts only.” 33. b) In case of Promotions, the reservation shall be applicable w.e.f. 31.05.2001 (i.e. the date indicated in (a) above) upto 11.12.2003, i.e. the date when the post of Inspector was reclassified as Group-B non-gazetted post. No reservation shall apply thereafter. This is because as per the DOPT Instructions, reservations are applicable to Group-C & D posts only.” 33. There is no dispute in regard to the fact that the 1st Petitioner/1st Respondent has issued a letter dated 01.04.2008 to all Commissioners of Central Excise calling for details of all physically handicapped officers, who were eligible to be considered for promotion as Inspector between the period 31.05.2001 (date of Notification of the Ministry of Social Justice and Empowermentidentifying the post of Inspector as eligible under 3% quota) and 11.12.2003 (date on which the post of Inspector was classified as Group B (non-gazetted). 34. Be that as it may, on an overall assessment of the facts and circumstances of the case in a conspectus fashion and also, taking note of the fact that the Respondent/Applicant has already been promoted under the physically handicapped quota/category and also, when the recruitment rule notified on 16.01.2003 for Senior Tax Assistant clearly speaks of the Data Entry Operator Grade B and C shall be deemed to have been appointed as Senior Tax Assistants and that the services rendered earlier by them would be taken into account for deciding the eligibility for promotion to the next higher grade. Weare of the considered view that the Respondent/Applicant has the requisite eligibility as per recruitment rules for promotion to the next higher grade. Therefore, to prevent an aberration of Justice and to secure the ends of Justice, we direct the Petitioners/Respondents to consider the claim of the Respondent/Applicant for promotion as Inspector of Central Excise and Customs under the physically handicapped category and to promote him from the date when his junior has been promoted under the same category and to pass appropriate orders by awarding all attendant consequential benefits, within a period of eight weeks, from the date of receipt of copy of this order. Consequently, the Writ Petition fails. In the result, the Writ Petition is dismissed leaving the parties to bear their own costs. Consequently, connected Miscellaneous Petitions are closed.