IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 27/04/2006
CORAM
THE HON'BLE MR.JUSTICE P.D.DINAKARAN
AND
THE HON'BLE MR.JUSTICE R.SUDHAKAR
W.P.No.38241 of 2005
J.John Wincent .. Petitioner
-Vs-
1. The Commissioner of
Central Excise
Chennai-I, Commissionerate
121, Nungambakkam High Road
Chennai-34.
2. The Chief Commissioner of Excise
(Cadre Controlling Authority)
121, Nungambakkam High Road
Chennai-34.
3. The Chairman
Central Board of
Excise and Customs
North Block,
Parliamentary House
New Delhi.
4. The Registrar
Central Administrative Tribunal
Madras. .. Respondents
PRAYER: Petition under Article 226 of the Constitution of India for
issue of a writ of Certiorarified Mandamus as stated therein.
For Petitioner :Mr.V.Raghavachari
For Respondents:Mr.R.Santhanam,
Senior Central Govt.
Standing Counsel
:ORDER
(Order of this Court was made by P.D.DINAKARAN,J.)
The petitioner seeks a writ of Certiorarified Mandamus to call for the
records on the file of the fourth respondent in O.A.No.136 of 2005 , dated
7.10.2005 and that of the first respondent in proceedings C.
No.II/3/13/2002-CF, dated 4.1.2005, to quash the same and to direct the
respondents to consider the petitioner’s name for promotion to the post of
Inspector of Central Excise.
2. The brief facts leading to the filing of this writ petition are as
under:
The petitioner joined the services of the respondents as a Lower
Division Clerk on 4.5.1990. Thereafter, he was promoted as Upper Division
Clerk in the year 1995. Consequent to the re-designation of the post in the
year 2002, he is holding the post of Tax Assistant. The petitioner, by virtue
of his experience, made a representation to the respondents to consider him
for promotion to the post of Inspector of Central Excise and Customs.
However, the respondent did not consider the representation of the petitioner
and he was informed that being a physically handicapped person, he would not
be able to do the arduous job of Inspector of Central Excise and Customs.
It is the further case of the petitioner that when persons who
suffered serious disability and were refused promotion, they approached the
Central Administrative Tribunal by way of O.A.No.884 of 2003, wherein
directions were issued to the respondents to consider the handicapped persons
to the post of Inspector of Central Excise and Customs. Thereafter, the
respondents 1 to 3 called upon the petitioner to undergo endurance test of
cycling and walking, and he was found to have performed the same successfully.
By proceedings dated 27.12.2004 of the second respondent, the case of the
petitioner was rejected as he does not have the prescribed height.
Aggrieved by the proceedings of the second respondent dated 27.12.20
04, the petitioner preferred an application before the Tribunal. The
Tribunal, taking note of the fact that the respondents have implemented the
order of the Tribunal in O.A.No.884 of ____ except in the case of the
applicant, whose candidature was rejected on the ground of failure to possess
the prescribed standard of height, held that there is no scope for relaxing
the standards built into the Recruitment Rules, and rejected the application
of the petitioner. Hence, this writ petition.
The learned counsel for the petitioner contends that the Tribunal
erred in rejecting the entitlement of the petitioner to the benefits conferred
under Section 47(2) of the Act in the matter of promotion.
The reason that was projected by the respondents and weighed by the
Tribunal that the petitioner was not qualified, even though he passed the
endurance test, is not justified as the petitioner claims promotion as a
matter of right reserved for the persons with disability.
Per contra, Mr.R.Santhanam, learned Senior Central Government Standing
Counsel for the respondents, supporting the conclusion of the Tribunal,
reiterated the submissions made before the Tribunal.
The point for consideration in this writ petition is whether the
petitioner is entitled to promotion?
One of the great world leaders, Nelson Mandela had said: “All
countries today need to apply affirmative action to ensure that the women and
the disabled are equal to all of us.”
The worldwide disability rights movement has initiated a new thinking
among non-disabled persons that people with disabilities must also be provided
with equal opportunities and equal treatment by society, a thinking that there
is no pity or tragedy in a disability and that is a myth that being disabled
is difficu lt.
The Constitution of India does not specifically prescribe
discrimination on the ground of “disability”, but it does contain
nondiscriminatory provisions that guarantee equality and equal opportunities
for all citizens as in Articles 14 and 16.
The Persons with Disabilities (Equal Opportunities, Protection of
Rights and Full Participation) Act, 1995 treats disability as a civil right
rather than a health and welfare issue, and recognises the need to integrate
persons with disabilities with the mainstream of society by some normative
action.
In this context, it is apt to refer Section 47 of the Act, which reads
as follows:
“Section 47: Non-discrimination in Government employments.-
(1) No establishment shall dispense with, or reduce in rank, an employee who
acquires a disability during his service:
Provided that, if an employee, after acquiring disability is not
suitable for the post he was holding, could be shifted to some other post with
the same pay scale and service benefits.
Provided further that if it is not possible to adjust the employee
against any post, he may be kept on a supernumerary post until a suitable post
is available or he attains the age of superannuation, whichever is earlier.
(2) No promotion shall be denied to a person merely on the ground of his
disability:
Provided that the appropriate Government may, having regard to the
type of work carried on in any establishment, by notification and subject to
such conditions, if any, as may be specified in such notification, exempt any
establishment from the provisions of this section.”
Section 47(1) of the Act, in clear terms, provides that there cannot
be any discrimination in Government employments and no establishment shall
dispense with or reduce in rank an employee whatsoever during his service.
Section 47(2) of the Act is relevant for our purpose. It in crystal clear
terms provides that no promotion shall be denied to a person merely on the
ground o f his disability.