IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 26TH FEBRUARY 2009 / 7TH PHALGUNA 1930 WP(C).No. 18645 of 2008(S) -------------------------- OA.158/2007 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH .................... PETITIONER(S): --------------- 1. THE COMMISSIONER OF CENTRAL EXCISE & CUSTOMS, CENTRAL REVENUE BUILDINGS I.S PRESS ROAD, COCHIN-18 2. THE CHIEF COMMISSIONER OF CENTRAL EXCISE & CUSTOMS, CENTRAL REVENUE BUILDINGS I.S PRESS ROAD, COCHIN-18 3. UNION OF INDIA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, NORTH BLOCK,NEW DELHI 110 001 BY ADV. SRI.P.PARAMESWARAN NAIR, ASST.SOLICITORGENERAL. SRI.THOMAS MATHEW NELLIMOOTTIL,SC, CB EX RESPONDENT: --------------- MOLLY VARGHESE DEPUTY OFFICE SUPERINTENDENT CENTRAL EXCISE DIVISION-1 CENTRAL EXCISE BHAVAN, KATHRIKADAVU,KALOOR COCHIN 682 917 ADV. SRI.C.S.GOPALAKRISHNAN NAIR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 18645/2008 APPENDIX PETITIONERS' EXTS. EXT.P1 - A TRUE COPY OF THE ORIGINAL APPLICATION NO.801 OF 2001 ALONG WITH ITS ANNEXURES FILED BY THE RESPONDENT BEFORE THE HONOURABLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXT.P2 - A TRUE COPY OF THE ORIGINAL APPLICATION NO.158 OF 2007 ALONG WITH ITS ANNEXURES FILED BY THE RESPONDENT BEFORE THE HONOURABLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXT.P3 - A TRUE COPY OF THE STAEMENT OF OBJECTIONS DATED 15.06.2007 FILED BY THE PETITIONERS. EXT.P4 - A TRUE COPY OF THE REJOINDER DATED 18.07.2007 TO THE STATEMENT OF OBJECTIONS FILED BY THE RESPONDENT. EXT.P5 - A TRUE COPY OF THE REPLY DATED 12.09.2007 FILED BY THE PETITIONERS TO THE REJOINDER. EXT.P6 - A TRUE COPY OF THE ADDITIONAL REJOINDER DATED 08.11.2007 FILED BY THE RESPONDENT. EXT.P7 - A TRUE COPY OF THE REPLY DATED 17.12.2007 FILED BY THE PETITIONERS TO THE ADDITIONAL REJOINDER. EXT.P8 - A TRUE COPY OF THE ORDER DATED 18.01.2008 IN OA NO.158 OF 2007 PASSED BY THE HONOURABLE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. EXT.P9 - A TRUE COPY OF CBEC LETTER F.NO.A.32011/48/74/AD.III A DATED 23.10.1974. EXT.P10 - A TRUE COPY OF CBEC LETTER F.NO.A-12034/26/92 – AD.III B DATED 04.11.1992. /TRUE COPY/ K.BALAKRISHNAN NAIR & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------- W.P.(C) NO. 18645 OF 2008-S ----------------------------------------- Dated 26th February, 2009. JUDGMENT Balakrishnan Nair, J. The respondents in O.A.No.158/2007 before the Central Administrative Tribunal, Ernakulam Bench are the writ petitioners. The applicant therein is the respondent. The applicant was a Tax Assistant under the Department of Central Excise. She had two channels of promotion, one as Inspector of Central Excise, which is in the executive wing and the other as Deputy Office Superintendent in the ministerial wing. For promotion to the executive wing, she has to satisfy certain physical measurements. The minimum height for lady candidates should be 152 cms and weight 48 kgms. Though, the applicant was considered for promotion in 1993, she could not clear the physical endurance test. According to the writ petitioners, she did not have the requisite height of 152 cms. But, according to the respondent/applicant, she is having the said height and she raised her claim armed with a Medical Certificate, which she obtained from the doctor. The said dispute was incidentally the subject-matter of an Original Application and a Writ Petition. Finally, in the present O.A., the Central WPC 18645/2008 2 Administrative Tribunal directed the respondents therein to consider the applicant for promotion as Inspector of Central Excise. It was based on the finding that she has the requisite height. For arriving at the said finding, the judgment of the CAT in O.A.No.801/2001 and the judgment of this Court in W.P.(C) No.35608/2004 were relied on. 2. According to the respondent, in view of the above two judgments, the dispute regarding the height no longer survives. According to the writ petitioners, the said position canvassed by the respondent is not correct. They would point out that the earlier findings of the CAT and this Court were rendered in connection with the examination of validity of the disciplinary action taken against the respondent. 3. The CAT, as mentioned earlier, accepted the contentions of the applicant and allowed the O.A and directed consideration of her claim for promotion. 4. We feel that whether the respondent has got a height of 152 cms is not a matter which should be decided based on the arguments and counter arguments of the parties. She has to appear before the competent authority for examination, to establish her claim regarding height. We think, it is the best and surest way of resolving the controversy. Accordingly, we direct the 1st petitioner to forward the respondent for medical examination to the WPC 18645/2008 3 District Medical Board, Ernakulam, by forwarding appropriate requisition to the District Medical Officer. If the report from the District Medical Board regarding the height of the respondent is favourable to her, the 1st petitioner shall refer the matter to the review DPC and act according to the recommendation of the review DPC. If the respondent is found eligible for promotion to the post of Inspector of Central Excise, needless to say, her claim for promotion to higher posts shall also be considered in accordance with law. The 1st petitioner is directed to complete this exercise within four months from the date of receipt of a copy of this judgment. Needless to say, if the respondent is found eligible for promotion, she shall be granted all the benefits according to law, including seniority and further promotions. Needless to say, for further promotions, she has to get clearance of the DPC. The judgment of the CAT is modified to the above extent and the Writ Petition is disposed of as above. K.BALAKRISHNAN NAIR, JUDGE. M.L.JOSEPH FRANCIS, JUDGE. nm/