JOINT COMMISSIONER OF CUSTOMS Vs. T E RADHA

JUDGEMENT

(1.) BY consent of petitioners and contesting first respondent, main writ petition itself is taken up for disposal. Aggrieved by the order of the Central Administrative Tribunal, Chennai dated 16-07-2004 , made in O. A. No. 27 of 2004; Customs Department has filed the above writ petition to quash the same on various grounds.

(2.) THE case of the petitioners is briefly stated hereunder: Smt. T. E. Radha, first respondent herein, is working as upper Division Clerk (Now Tax Assistant after reconstructing of the cadre) in the office of the first petitioner, namely, Commissioner of Customs (Export), customs House, Chennai-1. She is physically handicapped. She sought for promotion to the post of Examiner, a Group'c'post and submitted her willingness. Since clarification regarding accommodating physically handicapped persons in the grade of examiners/preventive officer, in view of the notification No. 16-25/99-N1-1 dated 31-05-200 1 issued by the Ministry of Social Justice and Empowerment was yet to be received from the Board, her candidature could not be considered. Accordingly, she was informed by the Joint Commissioner of Customs (Personnel and Vigilance), Office of the Commissioner of Customs (Export), Chennai, in his letter dated 7-7-200

(3.) THOUGH in the impugned order the Tribunal has concluded in the last paragraph (para 6) that ". . . The applicant is fully qualified to hold the post", the fact remains that she was not successful in the physical test (cycling) as evident from the memorandum dated 12-01-2005. It is the case of the Department before the Tribunal as well as before this court that the post of Inspector (Examiner) in Group "c" is a "selection post" which required specific physical standards and that the duties for the said post are arduous in nature, which cannot be expected to be performed by a physically handicapped person. Therefore, the Board has submitted a proposal to the Ministry of Social Justice and Empowerment, New delhi for exclusion of the said post from the purview of the notification dated 31-05-2001. As the matter is under consideration of the said Ministry coupled with the fact that she failed in the physical test (cycling), her candidature to the Selection post could not be considered. It is also brought to our notice that while filling up the post of Inspector (Examiner), the Department has followed the recruitment rules, including reservation, relaxation of age limit and other concessions required to be provided, wherever applicable for the scheduled Castes/scheduled Tribes, other Backward Classes, Ex-serviceman and other Special categories of persons in accordance with the orders issued by the central Government from time to time. As a matter of fact, it is brought to our notice that the first respondent herself has represented to the Department not to transfer her to Main Office for the reason that she could not walk and travel even for a short distance. Therefore, taking into account of her physical condition and her admission that she cannot walk and travel and the arduous nature of the duties attached to the post of Examiner and also in view of the clarification sought for from the Ministry of Social Justice and empowerment, her case for promotion to the Selection Post could not be considered. Inasmuch as in the Original Application the Central Administrative tribunal has issued a positive direction to promote the first respondent retrospectively notwithstanding the physical standards and physical test prescribed under the rules, the Department requested her to appear for the physical standards and physical test on 24-12-2004. THOUGH she has passed the physical standards, she failed in the physical test pertaining to cycling and therefore she did not qualify herself for the post of Inspector (Examiner ). We have already referred to the arduous nature of work attached to the post of inspector (Examiner ). It is the claim of the Department that in view of arduous nature, they themselves requested the Ministry for exclusion of the said post from the purview of the notification dated 31-5-2001 while implementing the reservation in respect of disabled persons. No doubt, the department is yet to receive appropriate order from the Ministry. As said earlier, in the absence of any order from the Ministry, the Office of the Customs conducted physical standards and Physical test in respect of eligible persons, in which the first respondent has failed in the physical test and is not successful. No doubt, Mr. P. V. S. Giridhar, by drawing our attention to certain provisions contained in the Act, namely, The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, would contend that by granting exemption and in order to fulfil the object of the said Act, the Department ought to have considered the case of the first respondent. As stated earlier, though the Tribunal has concluded that the first respondent is fully qualified for the post of Inspector (Examiner), the fact remains that she has failed in the physical test. Accordingly, it is incorrect to claim that she has fully qualified. In this regard, Mr. S. Manikumar, learned Senior Central Government standing counsel, by drawing to our notice a judgement of the Supreme Court in state OF MYSORE v. SYED MAHAMOOD, reported in AIR 1968 Supreme Court 1113, would contend that the Tribunal has committed an error in issuing a positive direction to promote the first respondent. As per the said decision, at the most, the Tribunal could issue direction to the Department compelling it to perform its duty and to reconsider whether having regard to the qualification and fitness she should have been promoted, particularly when the selection is subject to fitness of the candidate to discharge the duties of the higher post from among the persons eligible for promotion.