Madras High Court
The Joint Commissioner Of Customs ... vs Smt. T.E. Radha, Sundaraj Gugan, ... on 28 October, 2005
Equivalent citations: (2005)4MLJ653
Author: P. Sathasivam
Bench: P. Sathasivam
ORDER P. Sathasivam, J.
Page 1747
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 31-05-2001 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 7-7-2003. Aggrieved by the same, the first respondent preferred O.A. No. 27/2004 in the Central Administrative Tribunal seeking to set aside the order dated 7-7-2003 passed by the first respondent and the order dated 20-10-2003 in so far as the promotion of the third respondent (Sundaraj Guhan) to the post of Examiner is concerned and also direct her to promote to the post of Examiner (Inspector) with effect from 20-10-2003 with all consequential benefits.
3. The first respondent was appointed as Lower Division Clerk under quota reserved for physically handicapped persons on 10-6-1992. Subsequently, qualifying in the departmental examination and on completion of required qualifying years of service, the first respondent was promoted to the next higher grade of Upper Division Clerk. By circular No. 41/2003 dated 10-6-2003, willingness were called for from the Upper Division Clerks for promotion to the post of Inspector (Examiner), which is a Group "C" selection post. In the said circular, it has been mentioned that these candidates who have expressed their willingness should posses the physical standards and also qualify in the physical test as prescribed by the Department to become eligible for consideration for promotion to the grade of Examiners/Inspectors. Since the applicant is an Orthopaedic disabled person (right leg affected by Polio)and also clarification regarding accommodating physically handicapped person under reservation in the grade of Examiner/Preventive Officer in view Page 1748 of the notification No. 16-25/99-N-1 dated 31-05-2001 issued by the Ministry of Social Justice and Empowerment is yet to be received from the Board, her candidature for promotion to the grade of Inspector (Examiner) was rejected. Some officers, juniors to the applicant, who fulfilled the above physical standard and found eligible in all aspects were given promotion. After completion of her tenure in Air Cargo Complex, apprehending that she would be transferred to Main Office (Sea Commissionerate), the first respondent herself came forward and represented that she is residing at Nanganallur which is near by the Air Cargo Complex, and at her request she was retained in Air Cargo Complex itself. One of the nature of work of Inspector (Examiner)/Preventive Officer) is to go for examination/inspection of goods at various places for which the officer has to work and stand for a long time. Even for the general transfer and posting from Air Cargo Complex to the Main Office, the first respondent has expressed her physical inability that she cannot travel and walk. The promotion to the Grade of Inspector (Examiner) is a "Selection post" from among the eligible officers in the grade of Upper Division Clerk/Senior Tax Assistant/Stenographer and a separate inter-se-seniority is maintained. The Tribunal, while allowing the Original Application, has found that the first respondent was fully qualified for the post of Inspector/Examiner and also issued positive direction to promote her as Inspector (Examiner) with effect from 28-10-2003 with all consequential benefits. The direction of the Tribunal was considered by the department with reference to the recruitment rules and she was instructed by a memorandum dated 22-12-2004 to appear for physical standards/tests on 24-12-2004. In the physical test conducted by the department on 24-12-2004, the first respondent has passed the physical standards but has failed in the physical test, pertaining to cycle test and that therefore, the first respondent did not qualify herself for the selection post of Inspector (Examiner). The first respondent having failed in the physical test, requested for one more opportunity for cycling test on 31-12-2004. Since the first respondent has failed to qualify in the physical Tests conducted on 24-12-2004, her case can be considered only in the next DPC provided she qualifies in the physical endurance text. Though the first respondent is well aware of her failure to qualify in the test, in view of the positive direction to promote her retrospectively from 28-10-2003, the order of the Tribunal dated 16-07-2004 needs interference; hence the writ petition.
4. Heard Mr. S. Manikumar, Senior Central Government Standing counsel for the petitioners and Mr. P.V.S. Giridhar, learned counsel for first respondent.
5. The point for consideration in this writ petition is, whether the Tribunal is justified in arriving at a conclusion that the applicant is fully qualified to hold the post of Inspector (Examiner) and also justified in issuing positive direction to promote her to the post of Inspector/Examiner with effect from 28-10-2003 in spite of the fact that she had failed to qualify in the physical test conducted on 24-12-2004.
6. It is not in dispute that the first respondent herein is a physically handicapped person and is working as Upper Division Clerk (now Tax Page 1749 Assistant after restructuring of the cadre) in the office of the first petitioner. She submitted her willingness for promotion to the post of Examiner, a Group "C" post. In the Department's circular No. 41/2003 dated 10-6-2003, it has been mentioned that the candidates who have expressed their willingness should possess the following physical test to become eligible for consideration for promotion to the grade of Examiners/Inspectors:
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PHYSICAL STANDARDS (MINIMUM) MALE CANDIDATES
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i) Height 157.5 cms} Relaxable by 5 cms in case
ii) Chest 81.0 cms} of Garwalies, Assamese,
(fully expanded with } Gorkhas member of ST,
min.expansion of 5 cms) } Kumoan & Nagaland Tribals.
LADY CANDIDATES
i) Height 152.0 cms} Height relaxable by 2.5
ii) Weight 48.0 Kgs} cms and weight by 2 Kgs
} in case of Assamese,
} Gorkhas, members of ST
} Kumoan & Nagaland Tribals
} and Garwalies.
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PHYSICAL TEST
MALE CANDIDATES LADY CANDIDATES
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i) Walking 16000 mts in 15 minutes 1 Km in 20 minutes ii) Cycling 8 Kms in 30 minutes 3 Kms in 25 minutes."
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By a communication dated 22-12-2004, she was asked to appear for physical standards/Tests for consideration of promotion to the said post at the Jawaharlal Nehru Stadium on 24-12-2004 at 6.30 A.M. without fail. It is seen from the memorandum dated 12-01-2005 of the Commissioner of Customs, Chennai-1 dated 12-01-2005, the first respondent has failed in the Physical Test (Cycling) held on 24-12-2004 for consideration of promotion to the grade of Inspector (Preventive Officer/Examiner).
7. 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 Page 1750 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.
Page 1751
8. In State of Mysore v. C.R. Sheshadri, , the following observation is pressed into service: (para 7) "7. While we agree that the High Court has been impelled by a right judicial instinct to undo injustice to an individual, we feel that a finer perception of the limits of judicial review would have forbidden it from going beyond directing the Executive to reconsider and doing it on its own venturing into an area of surmise and speculation in regard to the possibilities of escalation in service of the appellant. Judicial expansionism, like allowing the judicial sword to rust in its armoury where it needs to be used, can upset the constitutional symmetry and damage the constitutional design of our founding document."
9. In State Bank of India v. Mohd. Mynuddin, , the Supreme Court has held that it is only when the process of selection is vitiated on the ground of bias, mala fides or any other similar vitiating circumstance other considerations will arise. The following conclusion is relevant: (para 5) "5...where the State Government or a statutory authority is under an obligation to promote an employee to a higher post which has to be filled up by selection the State Government or the statutory authority alone should be directed to consider the question whether the employee is entitled to be so promoted and that the Court should not ordinarily issue a writ to the Government or the statutory authority to promote an officer straightway.
10. In Indian Airlines Corporation v. Capt. K.C. Shukla, , Their Lordships have held that the Court cannot substitute its opinion and devise its own method of evaluating fitness of a candidate for a particular post. They further held: (para 4) "4...Whether a post should be filled by promotion or by selection is a matter which is governed by Promotion and Recruitment Rules. So long as the rules are not violative either of the regulations or the Act or arbitrary the courts will have little jurisdiction to interfere with it...."
11. In State of M.P. v. Vishnu Dutta, reported in 1995 Supp (4) Supreme Court Cases 461; and LIC of India v. Jagmohan Sharma, , the Supreme Court has not approved the direction of the Tribunal/High Court in directing the Department to give promotion without asking the Department to consider the same subject to fulfilment of the norms/conditions prescribed.
12. Mr. P.V.S. Giridhar very much relied on a decision of the Supreme Court in Kunal Singh v. Union of India, . Paragraph 8 of the order is pressed into service:
Page 1752 "8. The need for a comprehensive legislation for safeguarding the rights of persons with disabilities and enabling them to enjoy equal opportunities and to help them to fully participate in national life was felt for a long time. To realize the objective that people with disabilities should have equal opportunities and keeping their hopes and aspirations in view a meeting called the "Meet to Launch the Asian and Pacific Decades of Disabled Persons" was held in Beijing in the first week of December 1992 by the Asian and Pacific countries to ensure "full participation and equality of people with disabilities in the Asian and Pacific regions". This meeting was held by the Economic and Social Commission for Asia and Pacific. A proclamation was adopted in the said meeting. India was a signatory to the said proclamation and agreed to give effect to the same. Pursuant thereto this Act was enacted, which came into force on 1-1-1996. The Act provides some sort of succour to the disabled persons."
In the case before the Supreme Court, the appellant-Kunal Singh had acquired disability during his service and he was found not suitable for the post he was holding. He was shifted to some other post. Only in those circumstance, in view of the fact that the appellant acquired disability during his service and in the course of his employment, the Hon'ble Supreme Court set aside the order of termination and allowed his appeal. In the present case, we have already referred to the arduous nature of work being performed as Inspector (Examiner) and in fact, she failed in the physical test. No doubt, learned counsel for the first respondent has brought to our notice Note IV in the Notice published for Combined Graduate level (Preliminary) Examination, 2005 wherein it is stated that "Though physical standards have been specified for posts of Inspector (Central Excise), Inspector (Preventive Officer) and Inspector (Examiner), PH (OH) candidates, however, are eligible for these posts and are exempted from such physical standard as prescribed subject to their being otherwise medically fit.". It is relevant to note that in the same Notice, while referring (17) Physical Standards, after mentioning physical tests to be performed, Note I says "physically handicapped candidates are not eligible for the posts of Inspector (Preventive Office), Inspector (Examiner), Inspector (Central Excise), and Assistant Enforcement Officer".
13. In the light of the above details and the materials placed, notifications and instructions and taking note of the nature of work attached to the post of Inspetor (Examiner), we are of the view that the Tribunal committed an error in directing the Department to promote the applicant/first respondent herein to the post of Inspector (Examiner). We are also satisfied that the Tribunal has not considered all the relevant materials while arriving at the conclusion that she is fully qualified to hold the post, particularly when she was not successful in the physical endurance test. We are also satisfied that the tests and standards are in addition to the education and other eligibility criteria prescribed under the rules. The Tribunal has failed to consider that qualifying in the physical standard/test is one of the conditions to be satisfied for promotion to a selection post. The direction to promote the first respondent as Inspector/Examiner with effect from 20-10-2003, without reference to the recruitment rules and circulars governing the post is not acceptable. Page 1753 As rightly pointed out, the Department is the best judge to assess the capacities of the individual to perform the duties assigned to the post. As a matter of fact, considering her grievance and difficulties in attending office at a distant place, at her request, she was retained in the Air Cargo Complex, which is nearer to her residence at Nanganallur.
14. Under these circumstances, the impugned order of the Central Administrative Tribunal in O.A. No. 27 of 2004 dated 16-07-2004 is quashed and the Writ Petition is allowed. No costs. It is made clear that in view of the fact that the first respondent is eligible in all respects, except the physical test, her request for promotion may be considered for any other post equivalent to the post of inspector (Examiner) in accordance with Rules or instructions applicable. Connected W.P.M.P. is closed.