COMMISSIONER OF CENTRAL EXCISE Vs. CHIEF COMMISSIONER

JUDGEMENT

(1.) OP (CAT) 204 of 2010 was filed under Art.227 of the Constitution of India. Whereas WP (C) 14028 of 2010 was filed under Art.226 and Art.227 of the Constitution of India. Both the petitions are preferred against the order passed by the Central Administrative Tribunal (CAT) in OA 226 of 2009 dated 13/11/2009. Petitioners in OP (CAT) 204 of 2010 are the applicants before the Tribunal. Petitioner in WP (C) is the second respondent before the Tribunal. (Hereinafter the parties are referred to as they are arrayed in the application before the Tribunal). The brief facts leading to the petitions are as follows:

(2.) The second respondent joined the service of applicants 1 and 2 on 20/03/1989 as an Upper Division Clerk. He, who is one arm disabled, was promoted as Tax Assistant on 11/05/1994. Tax Assistant has got two channels of promotion. One channel is as Deputy Office Superintendent (DOS) which is a ministerial cadre. The other is Inspector of Customs, which is an executive cadre. Though the second respondent cleared the physical test for promotion as Inspector in 1993 and 1996 he was not considered for promotion on the ground that he is disabled. Being aggrieved, he moved the Tribunal below with an application as OA 288 of 1997. But he was non suited by order dated 20/09/1999. His earnest efforts to appraise the applicants that he was qualified to be promoted as Inspector yielded no result. The second respondent was defended by the applicants in the light of letter F No. 32011/9/95 / Ad III A dated 19/04/1996 in reiteration of letter F No. B - 12017/5/92 - AD III B dated 13/07/1993 which states that physically handicapped persons can neither be appointed / promoted to the executive post nor any benefits of reservation is admissible to them for appointment / promotion to the executive post. In the meanwhile, the 2nd respondent having lost hope of getting promotion as Inspector, opted for promotion as DOS and he was promoted as DOS. Simultaneously, the second respondent moved the first respondent, the Chief Commissioner for Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, (hereinafter referred to as 'the Act 1995') alleging that he was denied promotion to the post of Inspector despite the specific prohibition contained under S.47(2) of Act 1995. By Annexure A1 order dated 30/05/2008 the first respondent directed the applicants to re - examine the case of the second respondent for promotion to the post of Inspector on merits (against the general quota) between 19/04/1996 and 30/05/2001 and by extending the benefit of reservation / merit thereafter till the date of his exercising the option for promotion as DOS and to pass a speaking order within sixty days under intimation to the first respondent. Aggrieved by the said order, the petitioner approached the Tribunal below with the above application.

(3.) The Tribunal, by the impugned order, allowed the application in part. Para 20 and 21 of the order reads as follows: