CENTRAL ADMINISTRATIVE TRIBUNAL,MADRAS BENCH O.A.NO.381/2005 PRESENT: Hon ble Shri V.

Lakshmi Rattan(Member(A) and Hon ember (J)

ble .Shri. Ashok S.Karamadai,

Order pronounced by the Hob ble Shri.Ashok S.Karamadai,Member (j) The applicant was appointed as LDC in 1985 and he was promoted as UDC in the yea r 1989 and further promoted as TA in 1993. At this stage had 2 avenues of promot ion, 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 ph ysically handicapped person, he could not take the endurance test including cycl ing 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 per sons, pursuant to Section 32 of the said Act. The applicant made a representatio n 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 P H person and it would not be feasible to revert him to the post of UDC for the p urpose. In the meanwhile, the Government of India issued a letter-dated 27.1.200 4 whereby the post of Inspector was identified as a post capable of being filled by Physically handicapped persons. The applicant gave a representation on 4.3.0 4 seeking promotion citing the Judgement in Case No.2706/03 for which by order d ated 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 w as 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 tw o other persons who had been reverted from the DOS Cadre, for promotion as Inspe ctor and sought promotion. By order-dated 27.1.2005, the second respondent rejec ted 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 req uest and in the context of their failure to do so, he has come before this Tribu nal 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/3/41/2000 00-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 Centr al Excise was then not identified as a suitable post for PH, he could not be pe rmitted to take up the endurance test for promotion to the grade of Inspector a t that time. After accepting the promotion as DOS during 1995, he represented i n 2003 for reversion to lower grade which is not permissible as per the instruct ions issued by the Ministry of Finance dated 10.6.1988. The judgment in case No2 706/2003 referred to by the applicant is applicable only to the Physically Hand icapped persons who are otherwise eligible for promotion to the grade of Inspect or. 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 h e cannot be considered for promotion. for his contention that one Shri. Nagaraja n had been promoted as Inspector, it is stated that he was inadvertently revert

ed to the lower grade during 1992 and based on a judgement dated 5. 2.1993 he w as 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 a nd hence the applicant cannot equate his case with that of Shri .Nagarajan. Acco rding to the respondents, as per the existing instructions, the claim of the ap plicant 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 recor ds 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 19 93. 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 po st of Inspector in the Executive Cadre. Though he passed the prescribed departme ntal examination for the post of Inspector, being a physically handicapped perso n, he opted for promotion to the post of DOS(LII) as the post of Inspector was n ot identified as suitable to be handled by the handicapped persons, during 1995. Subsequently, the Ministry of Social Justice& Empowerment vide notification da ted 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 compli ance with Section 33 of (Persons with Disability, Equal opportunity, Protection of Rights and Full Participation Act, 1995), the Board considered the matter Rig hts and Full Participation Act, 1995), the Board considered the matte further a nd 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 1 995 in the pay scale of Rs.5000-8000 and now wants to take the benefit of the n otification 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 place d 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 mad e 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 c annot be appreciated as the order of the Tribunal dated 5.2.1993 had become fina l and no appeal has also been filed against the said order as seen from the repl y. 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 w hich some physically handicapped officers were promoted to the grade of Inspect or, 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 rea ds as follows: 118.Promotion-Policy to be followed where a person after getting promotion to a hig her 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 reverte d 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 mat ter has been considered in consultation with Department of Personnel and Trainin g and they have observed that when the individuals have already accepted, the pr omotion, their reversion to the lower post is not in order as it would create ad ministrative problems in filling up the posts. Department of Personnel and Train ing have, therefore, advised against the reversion of the persons working as Dy. Office Superintendents Level II to UDCs simply for the purpose of considering th

em for promotion to other posts is not in order. The advice of Department of Per sonnel 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 Opportuniti es Protection of Rights and Full Participation) Act, 1995, whereby a notificatio n came into force from 31.5.2001. While considering such cases, the respondent s 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 relying upon a general instruction issued in 198 8 have passed the impugned orders without taking into account the subsequent sta tutory notification and guidelines issued from time to time. Further, in the ca se 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 here in, the facts and circumstances of the present case is entirely different and ar ises 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 27.1.20 05 are not in conformity with the guidelines and instructions issued by the Gove rnment 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 appli cant afresh based on the representation submitted by him dated 20.9.2004 and pas s a speaking order after following the relevant rules in existence, within a pe riod 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 Adminis trative Tribunal in O, A. No.381 of 2005 dated 25.1.2006. 2. After going through the relevant materials placed on record, the Tribunal hold that the respondents in the Original application have not properly consider ed the representation of the petitioner as per the provisions of Persons with Di sabilities (Equal Opportunities, protection of rights and Full participation) Ac t, 1995. But the respondents, relying upon a general instruction issued in 1988, have passed the impugned order, without taking into account the subsequent stat utory notification and the guidelines issued from time to time by the Central Go vernment. In the circumstances the Tribunal set aside the impugned orders and d irected the respondents to consider the case of the petitioner in the O.A.No.381 of 2005 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 th e prescribed period. Against the order of the Tribunal, the present writ petitio n 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 appro priate orders in accordance with law. Therefore, we find no reasons to interfere with the order passed by the tribunal. The writ petitions are dismissed. Howev er, twelve weeks time is granted to the petitioners herein to complete the exerc ises and pass appropriate orders. No costs. Consequently, connected W.P.M.P is e nclosed.

Sd/. Asst.Registrar(TRUE COPY) Given under seal of High Court, Chennai,.