(1.) THIS Writ Petition has been filed by the Central Excise Department challenging the order dated 17-11-2008 passed in CP No. 75 of 2008 in O. A. No. 1274 of 2002 on the file of the Court of the Central Administrative Tribunal, hyderabad Bench, Hyderabad.
(2.) THE applicant in O. A. No. 1274 of 2002, first respondent herein, was appointed as an Upper Division Clerk in the in the petitioners-Department under direct recruitment quota in the year 1978 and was promoted to the cadre of Tax assistant in the year 1988. As per the recruitment Rules in vogue he was called for Physical and Endurance Tests and interview for consideration for promotion to the next higher grade on Executive side viz. , Inspector of Central Excise for the first time in the year 1986. The respondent no. 1 appeared for the physical test on 25-2-1986 and qualified himself in the Physical and Endurance tests. However, the DPC found him not fit for promotion to the post of Inspector. In the year 1987 again the respondent no. 1 was called for Physical and Endurance tests on 3-6-1987. He qualified himself in the Physical and Endurance Tests except in cycling test. Hence, he was not called for interview before the DPC. In the year 1988, again the respondent no. 1 was called for Physical and endurance tests held on 16-3-1988 at Hyderabad. This time his height was recorded as 156. 5 Cms in height measurement as against the required qualifying height of 157. 5 cms. Further the respondent no. 1 was disqualified in chest measurement and in cycling also. Hence, he was not called for interview by the dpc. In the year 1990 he was not called for the physical test/endurance test based on Board's letter No. A-32011/28/86-Ad. III-A dated 5-11-1986 according to which if a candidate was not found fit for promotion to the grade of Inspector on the ground that he does not possess the minimum prescribed height, it is not necessary to include him in the consideration list again next time and in case, a person gains height, he can bring it to the notice of the concerned authority. Aggrieved by this, the respondent no. 1 made a representation dated 26-7-1990 in response to which the respondent no. 1 by letter dated 9-10-1990 was informed that he was not called for interview as he do not possess the minimum height, and also disqualified in chest measurement and in cycling.
(3.) SUBSEQUENTLY, the respondent no. 1 was promoted as Deputy Office superintendent in the year 1991 and joined as DOS LS-II on 4-4-991. According to the petitioners it is not a feeder cadre for promotion to the cadre of inspector, and as he was not qualified in height in the previous physical test held in the year 1988, he was not called for the Physical and Endurance Test in the year 1991. In his representation dated 24-5-1991 he submitted an attested copy of a certificate issued by the Civil Assistant Surgeon, Government General hospital, Vijayawada certifying his height as 157. 5 cms. In the meanwhile, the respondent no. 1 approached the Tribunal vide O. A. No. 773 of 1991. The Tribunal vide its interim order dated 9-8-1991 directed the Department to permit the respondent no. 1 for the physical tests due to be held on 26-8-1991 or any other subsequent date, but to withhold the results pending the final outcome of that O. A. Accordingly, he was called for the physical and endurance tests on 17-9-1991 and interview on 18-9-1991. The respondent no. 1 appeared and qualified in the same, but the results were withheld as per the directions of the Tribunal vide interim orders dated 9-8-1991. Subsequently, the Tribunal vide order dated 11-3-1992 in the above O. A. directed the Department as follows: