Respected Sir,
I am physically handicapped employee working in the Central Excise Dept. as Deputy Office Supt(DOS),which is a Ministerial Cadre.
In our Department, there are two avenues for promotion viz. (1) Inspector of Central Excise,(Executive Cadre) and DOS (Ministerial Cadre). Usually UDC/TA are feeder cadre for promotion to the grade of Inspector of Central Excise .PH employees in the Department are not allowed to become Inspector and there was only one option to become D.O.S. Ministry of Social cation No.16/25 /NI dated 31.5.2001 identifying the post of Inspector of Central Excise also can be handled by PH employees. As there was no option to become Inspector, I was promoted as DOS. After promulgation of Notification dated 31.5.2001 of Social Justice and Empowerment. I am eligible for the post of Inspector of Central Excise.
My request for becoming Inspector was not acceded to by the Department ,based on the grounds that Notification of Social Justice and Empowerment dated 31.5.2001 was issued only in the year 2001 and is not having any retrospective effect further once promoted to the cadre of DOS, cannot be reverted for purpose becoming Inspector as per CBEC letter F.No.A.32011/10/88.AD.III A dated 10.06.88, which was issued with consultation of Department of Personal and Training.
I filed the case with Central Administrative Tribunal, Chennai, vide O.A.No.381/2005 dated 25.1.06 and passed the Judgment that impugned orders already passed by the Department ,not acceding to my request was set aside and Department is relying upon a General instructions issued vide Ministry’s F.No. A.32011/10/88.AD.III A dated 10.6.88( with consultation of DOPT issued) and stating that while considering such cases, the respondents are expected to take all possible efforts to give equal opportunity to the Physically Handicapped employees and treating the equals as unequals amount to discrimination. Three months time was allowed by the CAT., Chennai to pass the speaking order and O.A.was allowed.
Tthe Department had gone on appeal against the Order of CAT, Chennai vide W.P.NO.13306/06 (W.P.M.P.No.14629/2006) to High Court, Chennai. The High Court, Chennai also upheld the order of the CAT, Chennai and W .P filed by the Department was dismissed directing that no prejudice would be caused for reconsidering the matter afresh and appropriate orders to be passed in accordance with law in force.
The Department vide letter C.No. II/39/131/05 Estt. CCA dated 20.9.06 passed the speaking order negatively stating that as per the CBEC Ministry’s instructions vide letter F. No. B.12017/5/91-AD.III B dated 13.7.1993 and F. No. A.32011/9/95.AD.III A dated 19.4.06, Physically Handicapped persons should not be allowed to the Cadre post of Inspector of Central Excise.
Further vide F .No. A.32011/10/88. AD.III A dated 10.6.88 Finance Ministry had stated that matter of reversion of DOS (LII) for reversion to their substantive grade of U.D.C. for further promotion to the other cadre such as Inspector of Central Excise is not allowable, the decision taken by the Department was issued in consultation with DOPT ,Ministry of Personnel, Pensions, Public Grievances. The same instructions has been reiterated by Ministry of Finance letter F.No.32022/24/92 AD.III A dated 10.9.1992.
3% reservation is not implemented in our Department. Presently, Ministry of Finance (Department of revenue) has issued letter F. No. A.12034/62/2005 AD.III B dated 5.06.2006 and 27.11.06 reiterating that 3% Quota should be reserved for PH persons in the Customs and Central Excise Department for appointment/promotion of Inspector of Central Excise/P.O/Examiner.
In view of the above, my request may be considered for promotion to the grade of Inspector of Central Excise .
I beg to render Justice.
Thanking You Sir,
Yours truly,
M.ABDUL JABAR,
TYPE III/43, CENTRAL EXCISE QRS,
NEW SIDDAPUDUR,
COIMBATORE. 641 044
PHONE NO. 99940 57848
abduljabar695@gmail.com
CENTRAL ADMINISTRATIVE TRIBUNAL,MADRAS BENCH
O.A.NO.381/2005
PRESENT: Hon”ble Shri V.LakshmiRattan(Member(A) and Honblde.Shri.Ashok S.Karamadai,Member (J)
Order pronounced by the Hob’ble Shri.Ashokk S.Karamadai,Member (j)
The applicant was appointed as LDC in 1985 and he was promoted as UDC in sthe year 1989 and further promoted as TA in 1993. At this stage had 2 avenues of promotion, one to the Post of Deputy Office Superintendent(Level II) DOS in Short) in thee Ministerial Cadre and to the post of Inspector in the Executive Cadre. He had passed the Departmental Examination for the post of Inspector. He being a physically handicapped person, he could not take the endurance test including cycling test necessary for promotion as inspector. He was therefore promoted as DOS II w.e.f. 28.11.95. After coming into force of persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation), Act, the Government of India issued a notification dated 2.7.1999 identifying the post of Inspector, Central Excise as a post that could be filled up by Physically Handicapped persons, pursuant to Section 32 of the said Act. The applicant made a representation dated 9.3.2003 to the respondent requesting promotion to the post of Inspector bust the same was rejected on the ground that the post cannot be handled by a PH person and it would not be feasible to revert him to the post of UDC for the purpose. In the meanwhile, the Government of India issued a letter-dated 27.1.2004 whereby the post of Inspector was identified as a post capable of being filled by Physically handicapped persons. The applicant gave a representation on 4.3.04 seeking promotion citing the Judgement in Case No.2706/03 for which by order dated 1.6.2004 the second respondent rejected the same stating that the judgment was applicable only to the PH officers who were otherwise eligible for promotion as Inspector and in the instant case, as he was holding the post of DOS which was not a feeder cadre for the post of Inspector, he was ineligible for promotion as Inspector. By another representation dated 20.9.2004 the applicant quoted two other persons who had been reverted from the DOS Cadre, for promotion as Inspector and sought promotion. By order-dated 27.1.2005, the second respondent rejected his representation. The applicant states that as per the provisions of FR15, the respondents have ample power for reverting him to the lower post at his request and in the context of their failure to do so, he has come before this Tribunal seeking the following relief.
(i) To call for the records relating to Order No .C. No. II/3/41/2000 Estt. dated 8.8.2003 passed by the Tribunal respondent; order No. C. No. II/3/41/200000-Estt.dated 1.6.2004 passed by the Second Respondent Order No. C .No. II/3/15/2004.Est.dated 27.1.2005 passed by the second respondent and quash the same;.
(ii) To direct the respondents to revert the applicant to the post of UDC and consider him for promotion to the post of Inspector of Central Excise with all consequential benefits.
2. The respondents have filed a reply statement that the applicant did not have 2 avenues of promotions as stated in the O.A. As the post of Inspector of Central Excise was then not identified as a suitable post for PH, he could not be permitted to take up the endurance test for promotion to the grade of Inspector at that time. After accepting the promotion as DOS during 1995, he represented in 2003 for reversion to lower grade which is not permissible as per the instructions issued by the Ministry of Finance dated 10.6.1988. The judgment in case No2706/2003 referred to by the applicant is applicable only to the Physically Handicapped persons who are otherwise eligible for promotion to the grade of Inspector. The applicant had already been promoted and was officiating as DOS which is not a feeder cadre for promotion to the post of Inspector of Central Excise , he cannot be considered for promotion. for his contention that one Shri. Nagarajan had been promoted as Inspector, it is stated that he was inadvertently reverted to the lower grade during 1992 and based on a judgement dated 5. 2.1993 he was promoted as Inspector. It is further contended that subsequent OA. similar to the present case in O.A.No.97 of 1994 was dismissed as devoid of any merit and hence the applicant cannot equate his case with that of Shri .Nagarajan. According to the respondents, as per the existing instructions, the claim of the applicant for reversion cannot be considered and they pray for dismissal of the O.A.
3.We have heard the learned counsel for the parties and perused the entire records and the relevant orders placed on record. The applicant who joined service as LDC in 1985,was promoted as UDC and further promoted as Tax Assistant during 1993. At this stages he had 2 avenues for promotion, viz., to the post of Deputy Office Supt.(Level-II)(DOS L-II in short) in the Ministerial Cadre and to the post of Inspector in the Executive Cadre. Though he passed the prescribed departmental examination for the post of Inspector, being a physically handicapped person, he opted for promotion to the post of DOS(LII) as the post of Inspector was not identified as suitable to be handled by the handicapped persons, during 1995. Subsequently, the Ministry of Social Justice& Empowerment vide notification dated 31.5.2001 identified the posts of P.O/E.O. and Inspector, Central Excise and Customs as suitable to be handled by physically handicapped persons. In compliance with Section 33 of (Persons with Disability, Equal opportunity, Protection of Rights and Full Participation Act, 1995), the Board considered the matter Rights and Full Participation Act, 1995), the Board considered the matte further and it was decided to permit physically handicapped persons to undertake physical endurance test and promote them, as per Reservation quota, if they qualify the test (Annexure A-4 dated 27.1.2004). The applicant was promoted as DOS L-II in 1995 in the pay scale of Rs.5000-8000 and now wants to take the benefit of the notification issued in 2001 for promotion to the post of Inspector which carries the pay scale of Rs.5500-9000 The applicant has cited two other similarly placed persons viz. Mr. Nagarajan and Mr.Rajasekaran Nair who had been reverted from DOSs cadre and promoted as Inspector for which the contention of the respondents is that the said Nagarajan was reverted inadvertently and when effects were made to rectify the mistake, he approached the Tribunal and based on the judgement dt. 5.2.1993, he was promoted as Inspector. This argument of the respondents cannot be appreciated as the order of the Tribunal dated 5.2.1993 had become final and no appeal has also been filed against the said order as seen from the reply. Also, the reply is silent about the promotion given to Mr. Rajasekaran Nair who is presently working as inspector
of Central Excise. The applicant in his representation dated 20.9.2004(Annexure A8) has also cited promotion order No. C.II/3/99/2004 Estt. Dated 16.9.2004 by which some physically handicapped officers were promoted to the grade of Inspector, in pursuance of notification dated 31.5.2001. The impugned orders dated 8.8.2003,1,6,2004 and 7.1.2005 reiterates the Board’s instruction issued on 13.6.1988 following the Ministry’s letter dated 10.6.1988(Annexure R-1 to the reply) which reads as follows:
“118.Promotion-Policy to be followed where a person after getting promotion to a higher grade seeks reversion.
A point has been raised by the a Collector of Central Excise as to whether UDCs who have been promoted to the grade of DY. Office Supt .Level-II can be reverted to their substantive grade of UDC, as their own request, for consideration of their promotion to other grades such as Inspector of Central Excise etc. The matter has been considered in consultation with Department of Personnel and Training and they have observed that when the individuals have already accepted, the promotion, their reversion to the lower post is not in order as it would create administrative problems in filling up the posts. Department of Personnel and Training have, therefore, advised against the reversion of the persons working as Dy.Office Superintendents Level II to UDCs simply for the purpose of considering them for promotion to other posts is not in order. The advice of Department of Personnel and Training may be noted for compliance in future.
4. The applicant seeks a particular benefit provided for physically handicapped employees under the Provisions of Persons with Disabilities (Equal Opportunities Protection of Rights and Full Participation) Act, 1995, whereby a notification came into force from 31.5.2001. While considering such cases, the respondents are expected to take all possible efforts to give equal opportunity to the physically handicapped employees and treating the equals as unequals amounts to discrimination. The Respondents replying upon a general instruction issued in 1988 have passed the impugned orders without taking into account the subsequent statutory notification and guidelines issued from time to time. Further, in the case relied upon by the respondents in OA No.97 of 1994 (Annexure R-2 to the reply), though the relief sought for therein appears to be same as is sought for herein, the facts and circumstances of the present case is entirely different and arises at a different point in time. Hence we are of the considered opinion that the impugned orders passed by the respondents dated 8.8.03, 1.6.2004 and 27.1.2005 are not in conformity with the guidelines and instructions issued by the Government of India from time to time and accordingly the impugned order are hereby set aside. The respondents are hereby directed to consider the case of the applicant afresh based on the representation submitted by him dated 20.9.2004 and pass a speaking order after following the relevant rules in existence, within a period of three months from the date of receipt of a copy of this order. The O.A. is allowed. There will be no order as to costs.
True Copy Sd/Deputy Registrar
IN THE HIGH COURT OF JUDICATURE AT MADRS;DATED 15.6.2006
W.P.NO.13036 OF 2006 AND WP.M,P.NO, 14629 OF 2006
O R D E R.
(order of the Court was made by Elipe Dharma Rao.j.)
This writ petition is directed against the order passed by the Central Administrative Tribunal in O, A. No.381 of 2005 dated 25.1.2006.
2. After going through she relevant materials placed on record, the Tribunal hold that the respondents in the Original application have not properly considered the representation of the petitioner as per the provisions of Persons with Disabilities (Equal Opportunities, protection of rights and Full participation) Act, 1995. But the respondents, relying upon a general instruction issued in 1988, have passed the impugned order, without taking into account the subsequent statutory notification and the guidelines issued from time to time by the Central Government. In the circumstances the Tribunal set aside the impugned orders and the circumstances, the tribunal set aside the impugned orders and directed the respondents to consider the case of the petitioner in the O.A.Nop.381 of 2005 afresh based on the representation submitted buy him dated 20.90.2004 and pass a speaking order after following the relevant rules in existence within the prescribed period. Against the order of the Tribunal, the present writ petition is filed.
3.We are satisfied that no prejudice would be caused to the petitioners herein for reconsidering the matter afresh, as directed by the Tribunal and pass appropriate orders in accordance with law. Therefore, we find no reasons to interfere with the order passed by the tribunal. The writ petitions are dismissed. However, twelve weeks time is granted to the petitioners herein to complete the exercises and pass appropriate orders. No costs. Consequently, connected W.P.M.P is enclosed.
Sd/.
Asst.Registrar(TRUE COPY) Given under seal of High Court, Chennai,.
