Central Administrative Tribunal - Hyderabad
Shri J.G.S.Kishore Kumar vs The Central Board Of Direct Taxes on 17 December, 2008
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL HYDERABAD BENCH
AT HYDERABAD
ORIGINAL APPLICATION.NO.126/2007
DATE OF ORDER: 17th DECEMBER, 2007
BETWEEN:
1. Shri J.G.S.Kishore Kumar, S/o Shri J.Anjaneyulu,
aged about 33 years, Occupation: Stenographer Gr-II,
O/o Income Tax Officer, Ongole,
R/o Ongole District,
2. Shri K.N.V.L.Narasimham, S/o Shri Kota Ramam,
aged about 45 years, Occupation: Sr. Tax Assistant,
O/o The Additional Commissioner of Income Tax,
Range-3, Doda Garden, Visakhapatnam,
3. Shri Nallajarla Rama Prasad, S/o Shri Narasimha Murthy,
aged about 38 years, Occupation: Sr. Tax Assistant,
O/o Income Tax Officer, Tanuku,
West Godavari district,
4. Ms. N.Laxmi Neeraja, D/o Shri N.V.R.Sarma,
aged about 38 years, Occupation: Sr. Tax Assistant,
O/o Deputy Commissioner of Income Tax,
Central circle, Vijayawada,
R/o Hyderabad.
... Applicants
AND
1.The Central Board of Direct Taxes, rep. By its Chairman,
Ministry of Finance, Department of Revenue,
North Block, New Delhi,
2. The Chief Commissioner of Income Tax-I,
Ayakar Bhavan, 8th Floor,
Basheerbagh, Hyderabad.
..... Respondents
COUNSEL FOR THE APPLICANTS: MR.J.SUDHEER, ADVOCATE
COUNSEL FOR THE RESPONDENTS:MR.M.BRAHMA REDDY, Addl.CGSC
CORAM
HONBLE MRS. BHARATI RAY, MEMBER (JUDL.)
HONBLE MR. M.JAYARAMAN, MEMBER (ADMN.)
ORDER
(PER HONBLE MR. M.JAYARAMAN, MEMBER (ADMN.) The short point that arises for our consideration in this OA is whether the applicants are entitled to be considered for promotion to the post of Stenographer Grade-I/Inspectors/Office Superintendents under physically handicapped quota in the existing vacancies/ensuing vacancies by applying physically handicapped reservation for the said posts, as done in the earlier years, as per their eligibility and the roster meant for them.
2. The brief facts that are required to be taken note of are that the applicants are Orthopedically Handicapped (One leg affected) and they come within the meaning of Physically Handicapped as they have more than 40% of disability as defined under the Act. The applicant No.1 was appointed as Stenographer Grade-III and the applicant Nos. 2 to 4 were appointed as LDCs under the physically handicapped quota. The applicant No.1 was promoted as Stenographer Grade-II; the applicant No.2 became Data Entry Operator and after restructuring of the Department, he was re- designated as Senior Tax Assistant; and the applicant Nos.3 and 4 were promoted as UDCs and after re-structuring, they were promoted as Senior Tax Assistants. The 1st applicant is eligible to be promoted as Stenographer Grade-I as also to the cadre of Inspector. The applicant Nos.2 to 4 are eligible to be promoted as Office Superintendents as also as Inspectors. The posts of Stenographers Grade-I/Inspectors/Office Superintendents were under Group-C and subsequently they were brought under Group-B. The Department applied 3% reservation in promotion for physically handicapped persons for the posts of Income Tax Inspectors/ Stenographers/Office Superintendents when these posts were under Group-C and making direct recruitment to the posts of Inspector by applying reservation for physically handicapped persons but the same was not extended to the promotion quota on the ground that these posts are now in Group-B. The applicants made several representations but there was no reply from the respondents. Hence the present OA.
3. (i) The case of the applicants in this OA is that reservation for physically handicapped persons for the said posts was being made applicable since 1986 even after 'The Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995' has come into force and the same is being dispensed with recently. The applicants have submitted that the Department applied 3% reservation in promotion for physically handicapped persons for the posts of Income Tax Inspectors/Stenographers/Office Superintendents when these posts were under Group-C and making direct recruitment to the posts by applying reservation for physically handicapped persons but the same is not being extended to the promotion quota only for the reason that these posts are Group-B posts. According to the applicants the said act of the respondents is not only arbitrary and discriminatory but also violative of the Act.
(ii) The applicants have submitted that Chapter VI of the Act deals with employment. Under Section 33, it is an obligation on the part of every establishment to provide employment for locomoto disability or crebrial palsy at least to the extent of 1% in the posts identified for each disability. Under Proviso to Section 33, the Government may exempt the Department/Establishment from the provision of Section 33, having regard to type of work carried on in the Department/Establishment. Under Section 32 the appropriate Government shall identify the post in the establishment, which can be reserved for persons with disability. The applicants have submitted that a consolidated reading of Section 32 and 33 of the Act makes it clear that it is mandatory on the part of the Government to provide reservation to the physically handicapped persons at least to the tune of 3% (visually handicapped/Hearing impaired/Orthopedically Handicapped). Till a notification is issued exempting the posts and/or the Departments/Establishments from operation of the Act providing reservations for physically handicapped persons under the Act is a must. The applicants have submitted that the categories of the posts which they are concerned have been identified as reserved for persons with disability. Therefore, the said categories of posts have to be filled up by applying reservation to the physically handicapped persons.
(iii) The applicants have further submitted that Chapter VIII deals with non-discrimination and Section 47(2) of the said Chapter says that no promotion shall be denied to persons merely on the ground of disability. The applicants have submitted that the Hon'ble Supreme Court in AIR 2004 SC 4139, held that promotion cannot be denied to any person on the ground of disability till a notification is issued under Proviso to Section 47(2). The applicants have submitted that no such notification was issued by the respondents in this regard. The applicants have further submitted that the above three categories of posts are recently brought under Group-B (Non-Gazetted) without there being any change in the duties and responsibilities. Since the said reservation under direct recruitment quota for the very same post was allowed, the denial for promotion is illegal, irrational, arbitrary, discriminatory and violative of the provisions of the Act as also violative of Articles 14 and 16 of the Constitution. The applicants have submitted that without considering the case of the applicants, promotions are being given to others completely excluding the physically handicapped persons.
4. (i) The respondents have opposed the averments made by the applicants and filed a reply statement wherein it is stated that the promotions under the physically handicapped quota are being issued @ 3% of consolidated vacancies for Group-C and Group-D separately as per the existing instructions in this regard and no official, who is junior to the applicants in the OA, has been promoted overlooking their seniority. The respondents have submitted that the contention of the applicants that the eligible physically handicapped persons were denied promotions on the ground of their disability is, therefore, incorrect. The respondents have further submitted that the Central Board of Direct Taxes, New Delhi, vide letter dated 30.12.2004, clarified that the posts of Income Tax Inspectors, Office Superintendents and Stenos Grade.I are Group-B posts and, therefore, cannot be considered for promotion to these cadres under the physically handicapped quota. The reservation for the physically handicapped persons in the promotion quota is applicable only from Group-D to Group-C posts and only within Group-C posts vide DoP&T OM dated 29.12.2005 which was circulated vide CBDT's letter dated 30.1.2006.
(ii) The respondents have submitted that the 1st applicant was promoted as Stenographer Gr.II on 18.11.2005 under the physically handicapped quota and as per the Income Tax Deprtment Stenographer Grade.I, Group-B Non-Gazetted Recruitment Rules, dated 29.11.2005, the applicant has to complete three years of service as Stenographer Gr.II to become eligible for consideration for promotion to the cadre of Stenographer Gr.I. Hence, as per the recruitment rules, he would become eligible only after completion of three years service like any other general category candidate. As regards the eligibility of the applicants 2 to 4, they would come up for consideration for promotion to the cadres of Office/Superintendent/Income Tax Inspector as per their normal seniority as these are Group-B posts.
(iii) The respondents have further submitted that the DoP&T vide OM dated 29.12.2005 communicated detailed instructions with a view to consolidating the existing instructions, with regard to reservation for the persons with disabilities (physically handicapped persons) in posts and services under the Government of India and bring them in line with the Persons with Disabilities (Equal Opportunities, Protection of Rights & Full Participation) Act, 1995. As per these instructions, the reservation for physically handicapped persons is applicable for Group-A, Group-B, Group-C, and Group-D posts filled by direct recruitment. As regards the vacancies filled by promotion, the reservation for physically handicapped persons is applicable only for Group-C and Group-D posts. Thus, the respondents have submitted that the reservation for physically handicapped persons is not provided for promotion to Group-B posts. Hence, the existing instructions of DoP&T do not provide for reservation to the physically handicapped persons for promotion from Group-C cadres to Group-B cadres. The physically handicapped persons of Group-C category will, therefore, be eligible for promotion to Group-B cadres as per their normal seniority only along with other general category candidates. Hence, the respondents have submitted that the applicants' contention that they have been denied promotion on the ground of their disability is incorrect.
5. The applicants have filed a rejoinder to the reply statement of the respondents reiterating the averments made in the OA. The applicants have submitted that any proceedings of the Government which is contrary to the provisions of The Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 has to be treated as illegal and ab initio void. Hence, the DoP&Ts letter dated 29.12.2005 is to be treated as illegal since the Act does not make any distinction between the posts. The applicants have submitted that in the letter dated 29.12.2005, it was specifically mentioned in para 4 that identification of the posts which was done earlier, through notification dated 31.5.2001, shall continue and shall be used for providing 3% reservation for physically handicapped persons and it was clarified that the Ministry of Department has discretion to identify some more posts, which can be reserved for physically handicapped persons in addition to the jobs/posts already identified. It was further clarified that no Ministry/Department can exclude any identified job/post from the purview of the physically handicapped reservation on its own and merely because a job/post, which was already identified, is shifted from one group/grade to another group/grade, the reservation cannot be taken away and even after such change, the said job/post shall remain as identified post for physically handicapped persons. Hence, the applicants have submitted that mere change of category from Group-C to Group-B would not make the deletion of the said post from the identified post. It is also not open for the Ministry/Department to delete from the identified list and at any rate such a step was not taken by the Income Tax Department.
6. At the very first hearing held on 22.2.2007, the Miscellaneous Application No.41/07 filed by the applicants for filing a single OA in respect of all the four applicants was allowed. Since more time was being taken by the respondents to file a counter reply, the prayer made by the learned counsel for the applicant for issue of interim order was considered at the hearing on 20.6.2007 and the respondents were directed to maintain status quo as on that date till counter reply was filed. Three weeks' time was further granted for filing counter reply. Though counter reply was filed on 20.7.2007, none appeared for the respondents for hearing on 13.7.2007, 20.8.2007, 21.8.2007 and 22.8.2007. The matter was part-heard through Shri J.Sudheer, learned counsel for the applicant. None for the respondents appeared at the next hearing on 29.8.2007 or 19.9.2007. At the hearing held on 26.9.2007, the learned counsel for the respondents, who was present, was asked to clarify vide para 5 of the counter reply whether the applicants 2 to 4 were otherwise eligible to be considered for promotion or not. The learned counsel for the respondents sought two weeks' time to get instructions on the subject and also to file additional reply to the rejoinder filed by the applicants. The same was granted. But no additional reply was filed. Also none for the respondents appeared on 11.10.2007. It was made clear on 11.10.2007 that if none appeared at the next hearing, or if no additional reply is filed, the matter will be decided on the basis of counter reply filed by the respondents. The interim order was continued. Since none appeared on 14.11.2007, nor any additional reply to rejoinder was filed, the matter was reserved for orders. The interim order was extended till pronouncement of the judgment.
7. We have given our careful consideration to all the submissions made by the rival sides. The admitted facts are that promotions under physically handicapped quota are being issued @ 3% of the consolidated vacancies in Group C and D separately as per the instructions for quota some time. After passing of 'The Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995', detailed instructions were issued in this regard by the Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training dated 29.12.2005. These instructions are very detailed running into 17 pages and covered specific sub-paras viz., quantum of reservation, exemption from reservation, identification of jobs/posts, definitions of disabilities, competent authority to issue disability certificate, computation of reservation, maintenance of rosters, relaxation in age limit etc. Of these, the first three sub-paras, which are relevant to the subject case, are extracted below:-
2. QUANTUM OF RESERVATION
(i) Three percent of the vacancies in case of direct recruitment to Group A, B, C and D posts shall be reserved for persons with disabilities of which one per cent each shall be reserved for persons suffering from (i) Blindness or low vision, (ii) hearing impairment and (ii) locomotor disability or cerebral palsy in the posts identified for each disability;
(ii) Three percent of the vacancies in case of promotion to Group D, and Group C posts in which the element of direct recruitment, if any, does not exceed 75%, shall be reserved for persons with disabilities of which one per cent each shall be reserved for persons suffering from (i) blindness or low vision, (ii) hearing impairment and (iii) locomotor disability or cerebral palsy in the posts identified for each disablity.
3. EXEMPTION FROM RESERVATION:
If any Department/Ministry considers it necessary to exempt any establishment partly or fully from the provisions of reservation for persons with disabilities, it may take a reference to the Ministry of Social Justice and Empowerment giving full justification for the proposal. The grant of exemption shall be considered by an Inter-Departmental Committee set up by the Ministry of Social Justice and Empowerment.
4. IDENTIFICATION OFJOBS/POSTS:
The Ministry of Social Justice and Empowerment have identified the jobs/posts suitable to be held by persons with disabilities and the physical requirement for all such jobs/posts vide their notification No.16-25/99.NI.I dated 31.5.2001. The jobs/posts given in Annexure II of the said notification as amended from time to time shall be used to give effect to 3 per cent reservation to the persons with disabilities. It may, however, be noted that:
(a) The nomenclature used for any job/post shall mean and include nomenclature used for other comparable jobs/posts having identical functions.
(b) The list of jobs/posts notified by the Ministry of Social Justice and Empowerment is not exhaustive. The concerned Ministries/Departments shall have the discretion to identify jobs/posts in addition to the jobs/posts already identified by the Ministry of Social Justice & Empowerment. However, no Ministry/Department/Establishment shall exclude any identified job/post from the purview of reservation at its own discretion.
(c) If a job/post identified for persons with disabilities is shifted from one group or grade to another group or grade due to change in the pay-scale or otherwise, the job/post shall remain identified.
8. It is clear from the above, that,
(i) 3% of vacancies in case of promotions to Group D & C posts has to be done (provided element of direct recruitment does not exceed 75%),
(ii) There can be exemption from reservation to any department/establishment, which will be granted after consideration by an inter-departmental committee,
(iii) By Notification dated 31.5.2001, certain jobs/posts are identified. But it is not exhaustive and the Ministries/Departments can identify further jobs/posts in their discretion, but they cannot exclude any identified job/posts on its own discretion,
(iv) If a job/post already identified is shifted from one group or grade to another group/grade due to change in pay scale or otherwise, the job/post shall remain identified.
9. Admittedly, the jobs/posts already identified include the categories of posts with which we are concerned in the present case. Secondly, it is not the case of the respondents, that these jobs/posts come under the exempted category from reservation, since no such notification granting exemption from reservation has been produced before us. The only ground urged by the respondents is that as per Board's letter dated 30.12.2004 (Annexure I to the counter reply), the posts of Income Tax Inspectors, Office Superintendents and Stenographers Grade-I are Group B posts and in terms of DoPT letter dated 20.11.1989, reservation from physically handicapped in promotion is applicable in Group D, C and within Group C posts only. This stand of the respondents, in our opinion, is not correct, in view of the specific provision under para 4(c) above, vide para 7 of this Order. It is clear, therefore, that if the job/post has been shifted from Group C to Group B, it will not change the identified status of the job/post, so far as reservation is concerned. Therefore, the stand taken by the respondents is not in accordance with the provisions of the Act, as instructed to all the Departments of the Government of India, by the aforesaid letter dated 29.12.2005.
10. Secondly, it is not explained by the respondents whether it was examined as to the repercussions under this Act, when the identified posts i.e., Income Tax Inspectors, Officer Superintendents and Stenographers Grade I were shifted from Group C to Group B. It appears that so far as the respondents are concerned, the left hand does not know what the right hand is doing. The precise date when the identified jobs were shifted from Group C to Group B is not indicated. In any case, the applicants herein are not concerned with that as their rights are protected under the Act and the DoPT instructions dated 29.12.2005 Para 4(c).
11. In the light of the above discussions, the OA succeeds. Accordingly, the respondents are directed to apply the 1% reservation (meant for Orthopedically handicapped i.e., with one leg affected, having more than 40% disability) for the post of Income Tax Inspector/Office Superintendent/Stenographer Grade I, as done in earlier years and consider the case of all the applicants herein for promotion to the said posts as per eligibility and the roster meant for physically handicapped persons with all consequential benefits, in accordance with law. In the facts and circumstances of the case, the parties will bear their own costs.
(M.JAYARAMAN) (BHARATI RAY)
Member (A) Member (J)