IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI TUESDAY, THE 27TH MAY 2008 / 6TH JYAISHTA 1930 OP.No. 16150 of 2001(S) ----------------------- PETITIONER: ------------ SRI.CHARLIE JOSEPH P., INSPECTOR OF INCOME TAX, INCOME TAX OFFICE, DIVISION I, TRICHUR. BY ADV. SRI.P.BALAKRISHNAN (E) RESPONDENTS: ------------- 1. CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH, ERNAKULAM. 2. THE CHIEF COMMISSIONER OF INCOME TAX, CENTRAL REVENUE BUILDINGS, I.S.PRESS ROAD, COCHIN-682 018. 3. THE UNION OF INDIA, REPRESENTED BY THE SECRETARY TO THE COVERNMENT, MINISTRY OF FINANCE, NEW DELHI. BY ADV. SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR GENERAL FOR R1-3 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 27/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX (OP NO.16150/2001) PETITIONER'S EXTS. EXT.P1 - TRUE COPY OF THE ORIGINAL APPLICATION IN OA NO.1450/1998 FILED BEFORE THE 1ST RESPONDENT WITH ITS ANNEXURES ON 28.9.1998 EXT.P2 - TRUE COPY OF THE ORDER DATED 1.3.2001 OF THE 1ST RESPONDENT IN O.A.NO.1450/98. EXT.P3 - TRUE COPY OF THE REPLY STATEMENT DATED 22.4.99 FILED IN O.A.NO.1450/98 BY THE 2ND AND 3RD RESPONDENTS. /TRUE COPY/ K.BALAKRISHNAN NAIR & M.C.HARI RANI, JJ. ----------------------------------------- O.P. NO.16150 OF 2001-S ----------------------------------------- Dated 27th May, 2008. JUDGMENT Balakrishnan Nair, J. The petitioner was working as Inspector of Income Tax. He retired from service on 30.4.2008. He is a physically handicapped person. He was appointed to the post of Inspector of Income Tax from the feeder category of U.D.Clerks. 50% posts in the cadre of Inspector of Income Tax are filled up by promotion from among the U.D.Clerks and Stenographers in the ratio of 3 : 1. As per the relevant O.Ms., physically handicapped persons are entitled to get 3% of the vacancies arising in a year. The petitioner's grievance was that the physically handicapped persons, who were promoted to the cadre of Inspector of Income Tax, were not granted that benefit. Of course, among the promotees there were some physically handicapped persons. The respondents maintained the view that the persons who got promotion as Inspector of Income Tax include physically handicapped persons also. So, the requirement of the relevant O.Ms was satisfied. But, OP 16150/2001 2 the petitioner claimed that three points are reserved for physically handicapped persons in a 100 point roster. When their turn arise as per the roster, they should be promoted out of turn. The petitioner's representation, claiming this relief, has been turned down by the competent authority by Annexure-A11 order. Challenging Annexure-A11, Ext.P1 O.A was filed before the Central Administrative Tribunal, Ernakulam Bench. The respondents resisted the application, by filing Ext.P3 reply statement. The Tribunal after hearing both sides, passed Ext.P2 order dated 1.3.2001, upholding Annexure-A11 and rejecting the claim of the applicant. Hence this Original Petition, challenging Ext.P2 and also seeking consequential reliefs. 2. This Court after hearing both sides, on 6.3.2008, passed the following order: “The petitioner is a physically handicapped person. The post of Income tax Inspector is a Group 'C' post in which 3% of the vacancies are reserved to be filled up by handicapped persons from the feeder posts of UDC/Stenographer. The petitioner claims out of turn promotion in the 3% quota reserved for the physically handicapped persons. According to him, as per the earlier orders, points 33, 67 and 100 in a hundred point roster were to be filled by the physically handicapped persons. Subsequently, by OM dated 4.7.1997 the points reserved have been changed as 1, 34 and 67. The petitioner's claim for promotion in the physically handicapped quota has been rejected by the competent authority stating that OP 16150/2001 3 while filling up 92 posts, four physically handicapped persons were already promoted and one of them belonged to Scheduled Caste also. The petitioner submitted that those persons got promotions according to their turn in the feeder category. The petitioner has been promoted as Income Tax Inspector by order dated 14.8.1998. The said promotion was granted only when his turn arose as per his seniority in the UDC quota. 2. This controversy can be resolved only if the list of promotees and also the seniority list of persons in the feeder category are made available. Going by the seniority in the feeder category, it may be ascertained whether the physically handicapped persons were promoted out of turn. The second respondent is directed to produce the above said lists for the perusal of this Court. In the seniority list of Income Tax Inspector, the date of promotion of each incumbent to that category should also be specified.” Pursuant to the said direction, the respondents have filed a memo, producing the relevant lists. Going by the seniority list of Income Tax Officers produced, it would appear that in a 100 point roster, physically handicapped persons were promoted at point Nos. 15, 32, 75, 89 and 92. In the next rotation of 100 point roster, the petitioner was promoted at 24th point and another physically handicapped person was promoted at 34th point. The petitioner submits, the above list would prove his case. 3. The first O.M providing for reservation for the physically handicapped persons in the posts filled by promotion, is Annexure-A1 dated 20.11.1989. The second O.M is O.M.No.36035/7/95-Estt.(SCT) dated OP 16150/2001 4 18.2.1997, which is produced as Annexure-R1 E along with Ext.P3 reply statement, at page 23 of it. The third O.M is bearing No.36025/03/97-Estt. (Res.) dated 4.7.1997, available at page 26 of Ext.P3 (page 94 of the O.P.). As per the second O.M., the roster points earmarked for physically handicapped persons were 33, 67 and 100. As per the third O.M., now it is changed to roster point Nos.1, 34 and 67. Going by the lists produced, we notice that physically handicapped persons have not been given out of turn promotion either at roster point Nos.33, 67 and 100 or at 1, 34 and 67. So, the grievance raised by the petitioner is genuine. The fact that certain physically handicapped persons got promotion according to their turn, cannot be a ground to deny the reservation available to them. Of course, if the reservation is based on the cadre strength, there is some substance in the contention of the respondents. But, when this roster is operated based on the vacancies available in a year, the vacancies which arise at the three points set apart for them should be allotted to the senior-most physically handicapped person having the requisite qualification, standing in the queue in the feeder category. The said claim of the petitioner has been rejected by the competent authority by Annexure-A11 order. The Tribunal also mis- directed itself in law and failed to notice the sustainability of the claim made by the petitioner. Though the respondents reiterated their contentions raised OP 16150/2001 5 in Ext.P3 before us, we are not impressed by the same, in view of the clear directions contained in the O.Ms mentioned above. 4. In the result, the O.A is allowed. Ext.P2 and Annexure-A11 are set aside. The claim of the petitioner for out of turn promotion at the reserved roster point shall be reconsidered by the 2nd respondent in accordance with law, after affording an opportunity of being heard to the petitioner within three months from the date of production of a copy of this judgment. If the petitioner is found entitled to be promoted earlier by virtue of the reservation, his salary shall be re-fixed notionally as on the date of retirement and based on that his pension shall be revised. The petitioner will be eligible to get the actual monetary benefits only in relation to the pensionary benefits payable to him. The petitioner has not chosen to implead anyone, who will be affected by the grant of benefits to him, in this Original Petition. That is the reason why we are not inclined to grant the benefits with retrospective effect, which will have repercussions on other persons who are/were working as Income Tax Inspectors. The petitioner shall be entitled to arrears of pensionary benefits, if his claim is upheld by OP 16150/2001 6 the competent authority. The Original Petition is disposed of as above. K.BALAKRISHNAN NAIR, JUDGE M.C.HARI RANI, JUDGE nm/ OP 16150/2001 7 K.BALAKRISHNAN NAIR & M.C.HARI RANI, JJ. ------------------------------------- O.P. NO.16150/2001-S ------------------------------------- JUDGMENT 27.05.2008.