IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD TUESDAY, THIS THE 8th DAY OF DECEMBER, 2009 W.P.No.21331 of 2008 Between: The Central Board of Direct Taxes, rep. by its Chairman, Ministry of Finance, Department of Revenue, North Block, New Delhi and another ….PETITIONER(S) and Sri J.G.S.Kishore Kumar and others …RESPONDENT(S) THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR W.P.No.21331 of 2008 ORDER:( Per HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR) Respondents 1 and 2 in O.A.No.126 of 2007 before the Central Administrative Tribunal have called in question the final order of the Tribunal dated 17.12.2007. The said O.A. was filed by respondents 1 to 4 herein claiming a direction against the petitioners herein to apply the reservation of physically handicapped (hereinafter referred to as ‘the physically challenged’) for the post of Stenographer Grade-I / Inspectors / Office Superintendents and consider the cases of the applicants (respondents herein) for promotion to the said post as per the eligibility of applicants and roaster meant for physically challenged persons. The said O.A. was filed based upon the policy of the Central Government as notified by the office memorandum of the Ministry of Personnel, Public Grievances & Pensions, Department of Personnel & Training, dated 29.12.2005. As per clause (4) thereof, once a job/post is identified for extending the reservation under physically challenged quota, it continues to remain as identified job/post even if such job/post is shifted from one group or grade to another group or grade and even if there is a change in the pay-scale or otherwise. It is not in dispute that all the applicants are seeking consideration for promotion to the post of Income Tax Inspectors. According to the applicants, the said post is classified under Group-C and, as per the memorandum referred to above, the reservation meant for physically challenged candidates is available to the said post. The writ petitioners, however, disputed the said contention before the Tribunal by contending that on account of the groupings for the post of Office Superintendent and Stenographer Grade-I having been brought under Group-B posts, the reservation in promotions to the said Group-B posts for physically challenged candidates is not available as per the aforesaid memorandum. Reliance was placed by the petitioners on a clarification issued by the Central Board of Direct Taxes bearing F.No.A-41015/45/2004-Ad.VII dated 30.12.2004 which for better appreciation is extracted hereunder. “I am directed to refer to your letter F.No. Reservation/PH/ Estt/2004 dated 02.11.2004 on the above subject and to say that Recruitment Rules are pending finalization in respect of Income Tax Inspector, Office Suptd and Steno Gr-I, which are Group-B posts. As per DOP&T’s OM No.36035/8/89-Estt(SCT) dated 20.11.89, sent with Board’s letter of even number dated 26.10.2004, reservation for physically handicapped in promotion is applicable only in Group D, C and within Gr C posts. It is requested that the matter may be decided in the light of instructions contained in DOP&T’s OM referred to above.” The petitioners also contended before the Tribunal that once the equivalent posts of Office Superintendent and Stenographer Grade-I, which are on par with the post of Income Tax Inspector, are classified under Group B, the said reservation may not be applied. The Tribunal considered the rival contentions and found that the post of Income Tax Inspector has not been classified under Group B even now. The Tribunal also felt that the official memorandum dated 29.12.2005 referred to above, specifically covers all posts under Group C and even otherwise under para-4(c) thereof once the post is identified, it continues to remain as identified post notwithstanding the change of groups or change of pay scales. As mentioned above, it is not in dispute that under the identification proceedings with respect to this particular post by the Ministry of Social Justice and Empowerment dated 31.05.2001, the post of Income Tax Inspector being Sl.No.117 is identified for various categories of disabled suitable. So far as the respondents herein are concerned, they suffer from one leg disability which was also categorized under column 5 of the said circular with reference to the posts of Income Tax Inspectors. The Tribunal, on appreciation of the facts and circumstances of the case, was of the view that the respondents herein are entitled to be considered for promotion to the post of Income Tax Inspector by applying the principle of reservation under physically challenged quota. The petitioners have questioned the aforesaid order in this writ petition and by order of this Court dated 29.09.2008, while admitting the writ petition, the interim suspension of the order of the Tribunal was granted. Learned counsel for respondents has now moved an application seeking vacation of the stay. While hearing the said application, both the learned counsel requested that the submissions in the main writ petition also being the same, the main writ petition may be heard and disposed of. Accordingly, we are disposing of the main writ petition itself. The learned standing counsel appearing for the petitioners submits that the Tribunal has committed an error in appreciating the office memorandum dated 29.12.2005. He submits that para-4 has to be read conjointly with para-2 and the reservation available is only for Group C and D posts. He also relied upon the clarification issued by the Central Board of Direct Taxes dated 30.12.22004 referred to above which says that statutorily the post of Office Superintendent and Stenographer Grade-I are classified in Group D posts. He was also brought to our notice the fact that the pay scales referring to the post of Income Tax Inspector is Rs.6500-200- 10500 which is higher than that of Stenographer Grade-I or Office Superintendent. Learned counsel, therefore, submits that by notification as early as on 26.10.2005 and 13.02.2007, when the post of Stenographer Grade-I and Office Superintendent are classified into Group B posts, the post of Income Tax Inspector which carries higher scale of pay also must be held to be in Group B posts. Therefore, the reservation under the physically challenged category is not available. Learned counsel further submits that the Tribunal has misread the office memorandum dated 29.12.2005 and erred in allowing the O.A. Learned counsel for the applicants, on the contrary, submits that even according to the writ petitioners also the post of Income Tax Inspector even as on today continues to be the Group C category. It is also asserted that direct recruitment of Income Tax Inspector post even now is being taken up as Group C post. He, therefore, submits that pay scale is not the criteria but, however, only the classification made under Article 309 of the Constitution of India would alone govern the category to which the post belongs. Even alternatively he submits that the present post of Income Tax Inspector having been identified as a post for which the reservation under physically challenged category is available by reading paras-4(b) and 4(c) of the office memorandum, the said classification and identification cannot be changed even after the post is shifted to one group or other group or the pay scales are changed. He, therefore, submits that the Tribunal was justified in allowing the O.A. Another circumstances on which strong reliance is placed is that though the O.A. was filed by four applicants who are respondents 1 to 4 herein, except the 2nd respondent, other three respondents have already been promoted to the category of Income Tax Inspector by applying the physically challenged reservation. He, therefore, submits that non-consideration of the case of 2nd respondent alone is completely unjustified. The learned Standing counsel, in reply, however, submits that though, except the 2nd respondent, all the respondents were promoted as Income Tax Inspectors, the said promotion is without prejudice to the present writ petition. He also relies upon an order of the Chief Commissioner for Persons with Disabilities dated 20.06.2008 passed at the instance of 3rd and 1st respondents herein in Case No.5107 of 2008 and Case No.5086 of 2008. The said complaints were filed with the said respondents before the Commissioner complaining of the department not extending the benefit of physically challenged reservation to only the said respondents to get promotion as Income Tax Inspector. In the aforesaid order, the Commissioner has noticed that the post of Income Tax Inspector continues to remain in Group C posts and not extending the said benefit of reservation is not justified. However, the Chief Commissioner proceeded to think that the impugned judgment of the Tribunal herein is an ex parte decision and he proceeded to advise the petitioners to file a review or an appeal. Per contra, the learned counsel appearing for the respondents placed another order of the same Chief Commissioner in Case No.5108 of 2008, relating to two of the Senior Tax Assistants from Gujarat, wherein the Chief Commissioner by his order dated 30.05.2008 has taken a completely contrary view. Learned Chief Commissioner has recorded that there is no notification issued regarding changing its status from Group C to Group B and, therefore, the said post remains in Group C only and, consequently, came to the conclusion that the benefit of reservation is available and issued directions accordingly. We have considered the aforesaid rival contentions and are of the view that the judgment of the Tribunal is justified and does not warrant interference at least for two main reasons. Firstly, that even according to the writ petitioners, the categories of the post of Income Tax Inspector continues to remain as Group C post even today. The contention of the learned Standing counsel to treat the said post as in Group B on the basis of the pay scale is clearly not justified in as much as the classification of the post is a statutory function which the Central Government has been discharging under Article 309 of the Constitution of India. One such classification as late as 09.04.2009 is placed before us is S.O.946(E) which was issued by the Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training). Even according to the said classification also, the status of the post of Income Tax Inspector being in Group C remains unchanged. Secondly, the office memorandum of the Ministry of Personnel, Public Grievances & Pensions, Department of Personnel & Training, dated 29.12.2005, admittedly, applies to Group C and D posts regarding which there is no controversy. In the light of these two aspects, the post of Income Tax Inspector being in Group C, it is clearly subject to the statutory reservation policy covered under the aforesaid office memorandum. Since, except the 2nd respondent, the other respondents having been already promoted to the post of Income Tax Inspector, the case of the 2nd respondent may also be considered to the said post if he is otherwise eligible to hold the said post and the directions issued under the impugned judgment, therefore, cannot be said to be vitiated and do not call for any correction under our certiorari jurisdiction. The writ petition is, therefore, devoid of merits and is liable to be dismissed. The writ petition is, accordingly, dismissed. There shall be no order as to costs. __________________ V.ESWARAIAH, J ____________________________ VILAS V.AFZULPURKAR, J 8th December 2009 CVRK