JUDGMENT :

Manjusha Deshpande, J.

The Petitioner herein is challenging the order passed by the Central Administrative Tribunal, Mumbai (“CAT”, for short) in Original Application No.296 of 2021 dated 2 March 2023. The Petitioner is seeking modification of the order passed by the Tribunal. It is further prayed that it may be declared that the Petitioner is eligible to be promoted to the Post of Tax Assistant from 22 November 2010 onwards. The consequential relief of grant of arrears of pay and fixation of pension alongwith interest @ 12 % consequent to his promotion with effect from 22 November 2010, has also been prayed for.

2. The Petitioner herein had approached the CAT, Mumbai with the following prayers :

(a) Call for the record of the case.

(b) Direct the respondents to consider and grant promotion to the post of Tax Assistant i.e. the form 18th December 2008 or any other Immediate DPC held afterwords with all consequential benefits.

(c) Direct the respondents to grant TA/DA as per the entitlement of physically disabled person with effect from 22/11/2010.

(d) Direct the respondents to grant consequential arrears and back wages with interest at the rate of prevailing GPF.

(e) Direct the respondents to initiate the process of refund of professional tax deducted from him as per rule and law.

(f) Pass any other order or direction which this Hon’ble Tribunal thinks fit and proper in the facts and circumstances of the case including the costs.

The brief facts of the case of the Petitioner before the Tribunal are that the Applicant is a person with Permanent Disability (orthopedically handicapped). He was appointed as a peon in the year 1989 under the reservation of physically handicapped category vide order dated 6 October 1989. The certificate of being physically handicapped was issued by the All India Institute of Physical Medicines and Rehabilitation Ministry of Health and Family Planning vide Rehab No.4278/80 dated 9 December 1980 which certified that the Petitioner was suffering disability to the extent of 40%. The Petitioner was thereafter promoted as a “Dafterband” on 30 August 2001, and as a Notice Server on 18 December 2008.

The Additional Commissioner of Income Tax vide communication dated 18 November 2010 required the Petitioner to undergo Medical Examination at All India Institute of Physical Medicines and Rehabilitation, Haji Ali Park, Mahalaxmi, Mumbai. The said Medical Examination was to ascertain the physical status of the Petitioner prevailing at that point of time. A medical certificate dated 22 November 2010 certifying the Petitioner's disability to the extent of 25% came to be issued. The Petitioner was informed by the Assistant Commissioner of Income Tax, Mumbai vide his communication dated 29 March 2011 that his claim for the status of Physically Handicapped (hereinafter referred to as, “PH”, for short)cannot be considered as medical certificate dated 22 November 2010 certifies his disability only to the extent of 25%. It was further informed that according to the GIMF OM No.19029/1/78 – E IV (B) dated 31 August 1978, 3 December 1979 and 26 May 1983 the percentage of orthopedically handicapped person should be minimum 40% of permanent/partial disability of either upper limb or 50% permanent /partial disability of both upper and lower limbs together.

3. The Petitioner was informed vide communication dated 30 May 2012 that, the Respondents have recovered an amount of Rs.15,600/- from his salary towards “Physically Handicapped” (“PH”, for short) allowance drawn by him from 22 November 2010 i.e. the date on which a certificate of 25% disability was issued to the Petitioner. The Petitioner made representations for restoring his status of disability by stating his entire history. The Petitioner thereafter had made various applications to different Institutions for issuance of Disability Certificate. The following are the