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TMI Blog2018 (2) TMI 1807X X X X Extracts X X X X X X X X Extracts X X X X ..... into account all these aspects which would have bearing in the matter. Having regard to the attending circumstances, inter-alia, the others to whom also notional date of promotion is given, financial benefits are not given from such a date - we do not see that the impugned decision rendered by the Chief Commissioner for Persons with Disabilities, new Delhi is sustainable on facts and in the circumstances and the position as would be obtaining from the developments taking place from time to time - petition allowed. - WRIT PETITION NO. 5570 OF 2012 - - - Dated:- 12-2-2018 - SUNIL P. DESHMUKH And P. R. BORA, JJ. Mr. D. S. Ladda, Advocate for the petitioner Mr. Ajinkya Kale h/f Mr. S. B. Talekar, Advocate for respondent JUDGMENT ( PER SUNIL P. DESHMUKH, J. ) 1. Rule. Rule made returnable forthwith and heard learned advocates for the parties finally with consent. 2. The petitioner, under this writ petition questions, propriety, validity and correctness of the order dated 31st March, 2010 passed by Chief Commissioner for Persons with Disabilities, New Delhi in case No.10212461. 3. After hearing learned advocates for the parties, it emerges that responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DC and as such, had not been considered to be eligible. 5. Subsequently, in 2005, Andhra Pradesh High Court had passed an order in writ petition No. 2378 of 2005 to the effect that the vacancies in the cadre of inspectors which had arisen prior to 7th December, 2002 be filled up in accordance with 1979 recruitment rules. The decision consequently resulted into revival of vacancies abolished during cadre restructuring exercise carried out, referred to above. 6. In view of aforesaid, a DPC had been held on 14th / 17th July, 2006 for filling up of these vacancies. 7. It appears that on 1st February, 2008, respondent had made an application to the Chief Commissioner for Persons with Disabilities, New Delhi for his promotion with retrospective effect as information solicited by him revealed that Pune-1 Cadre Control had not maintained roster for persons with disabilities. 8. In the meanwhile, one Smt. Sharmila Gupta, Stenographer who had joined the Mumbai Cadre Control on Inter Commissionerate Transfer (ICT) had lost earlier seniority and was placed at serial No. 56 of the seniority list of stenographers grade III as on 1st January, 2002. She had appeared at serial No. 501 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er to directly entertain service matters of employees and has no jurisdiction to pass order like the impugned one. It is contended that the respondent had been fortunately able to receive benefit of notional promotion with effect from 6th December, 2002 as a result of decision by Andhra Pradesh High Court, which otherwise would not have come his way, having regard to restructuring exercise that had been carried out by the department in 2003, wherein number of posts had gone down and the respondent in the circumstances, having regard to eligibility criteria for promotion to the grade of inspector from UDC and it would not have been possible to be given pursuant to the prevailing recruitment rules. He submits that actual financial benefits could not be paid to the respondent as he has not actually worked on said post during that period on the principle of no work, no pay . He submits that had the Andhra Pradesh High Court s judgment been not implemented, there would not have been revival of vacancies pursuant to 1979 recruitment rules and the number of vacancies would have gone down and the respondent seldom could have a chance to be promoted in the cadre of inspector on the basis o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le only from the date on which they had assumed charge as inspector and no officer had been granted financial benefit from the notional date of promotion. 15. On the other hand, learned advocate Mr. Ajinkya Kale holding for Mr. S. B. Talekar for the respondent contends that the respondent had been appointed as LDC from physically handicapped category on 31st May, 1993. He had been promoted to the grade of UDC on 23rd August, 1999. He had become eligible to appear for promotion examination to the post of inspector in 2001. The petitioner, however, did not consider him eligible for promotion to the post in terms of letters of ministry dated 19th April, 1996. Posts of inspector have been identified for persons with disabilities pointing out that three officers were promoted under physically handicapped quota by the Commissioner, Central Excise. He had not been allowed to appear at promotional test of inspectors in 2003. He was allowed to appear in examination in October, 2004 and had been declared successful. From February, 2003 to 2006, three hundred thirty ministerial officers were promoted as inspectors and only six persons with disabilities were promoted during said period. He, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nancial benefit from the date of his notional promotion. The matter is disposed of. 18. The respondent had joined duty as LDC on 31st May, 1993 while 1979 recruitment rules required seven years service for next promotion to the grade of UDC, in ordinary course. The respondent would have been under the rules, eligible for consideration to the grade of UDC in 2000, on completion of seven years. He had been given benefit of relaxation of two years and with effect from 23rd August, 1999 had been given promotion to the grade of UDC. Pursuant to relevant rules, for promotion to next cadre, in the present case cadre of inspectors, qualifying service required in the cadre of UDC is five years. As such, taking such a deemed date of promotion to the grade of UDC of respondent of 1999, he would have been in ordinary course eligible to be considered for next promotion to the cadre of inspector in August, 2004. 19. In the meanwhile, there appears to be some restructuring exercise carried out by the department under which promotional posts were reduced in 2003 and in the prevailing circumstances, it would have been difficult for the respondent to be considered eligible for promotion to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent, in ordinary course, while it is his case that in 2001 he had been promoted to the grade of UDC, he would have been eligible to be considered for next promotional post of inspector in 2006 and the Tribunal has not further considered that grievance was being made only in 2008 and during pendency of proceedings the department had in fact informed to the Chief Commissioner for Persons with Disabilities, New Delhi about development taking place. 25. Going by case of the respondent, although he would be considered eligible for promotion in 2004, yet there had been reduction in posts and there was bleak possibility of his promotion. It is not a case where there is deliberation to keep him away. 26. Respondent has been given notional promotion from 2002. The respondent pursuant to the notional promotion, has joined on the promotional post and since then he has been receiving all the consequential, ancillary and incidental benefits arising from the date of notional promotion on 6th December, 2002 as in the case of other persons. 27. It does not appear in the facts of the case, that the respondent has been ignored for promotion or for that matter there had been no reason ..... X X X X Extracts X X X X X X X X Extracts X X X X
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