JUDGMENT

1. The Petitioners herein seek to challenge the judgment and Order dated 05.09.2011, passed by the Central Administrative Tribunal (hereinafter referred to as „the Tribunal‟) in O. A. No.3254/2010.

2. The case of the Petitioners is that they are physically handicapped (PH) persons who come within the definition of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as ‘the PwD Act’). It is stated that the Petitioners appeared for the Staff Selection Examination for appointment to the post of Income Tax Inspector in handicapped quota. They were selected and appointed to Group ‘C’ Service on the post of Inspectors on 16.12.1990 and 01.04.1991 respectively. It is stated that the Petitioners were promoted to Group ‘B’ Service on the basis of seniority without being given the benefit of reservation. It is stated that the next promotion available to the Petitioners is in the Group ‘A’ Service on the post of Assistant Commission of Income Tax. The case of the Petitioners is that they are entitled to 3% reservation under the PwD category. It is stated that the Government provided 3% reservation for the vacancies to physically handicapped persons for direct recruitment in Group ‘C’ and Group ‘D’ posts and vide Office Memorandum (OM) dated 18.02.1997 physically handicapped persons were granted 3% reservation in Group ‘A’ and ‘B’ posts which were to be filled through direct recruitment. It is, therefore, stated that reservation is available to a physically handicapped person who seek employment through direct recruitment in Group ‘A’ and ‘B’ posts but not for those Group ‘A’ and ‘B’

posts which are to be filled by promotion.

3. It is stated that Petitioner No.1 herein preferred a representation before the Chief Commissioner, Income Tax, stating that the benefit of reservation for physically handicapped persons must be made available for promotion posts as well. It is stated that the said representation was rejected by the Office of Chief Commissioner of Income Tax vide Order dated

16.08.2010 by stating as under:

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a. The contention of the applicant officer is that if the policy of 3% reservation had been implemented by the Department at the time of promotion to the grade of ACIT vide order No.169 of 2001, 27 posts would have been carried forward to next three years. As the applicant was eligible for promotion to the grade of ACIT from 2004 onwards, he would have been benefited out of the same. In the alternative if the reservation policy had been implemented in 2005 when vide order No.31 of CBDT dated 15.02.2005, 122 officers were promoted to the grade of ACIT, he would have been promoted.

b. The applicant's contention is essentially based on DOPT's O.M dtd. 16/01/1998, No.36035/7/95-Estt. (SCT). This O.M. according to the applicant seeks to rectify the original O.M. dtd. 18/02/1997 No.36035/16/91-Estt. (SCT) and provides for reservation as claimed by the applicant officer. The contention of the applicant officer has been considered with reference to the Persons With Disabilities (Equal Opportunities, Protection of Rights and Full participation) Act, 1995 and also the O.Ms issued by DOPT on this subject from time to time. The following emerges out of the same.

(i) After the Persons With Disabilities (Equal opportunities, Protection of Rights and Full participation), Act 1995 came into existence, reservation in direct recruitment was extended to Group 'A' and Group 'B' posts vide DOPT OM No.36035/16/91-Estt(SCT) dated But reservation to persons with disabilities was never made available in case of promotions to Group A and Group B posts.

(ii) The existing instructions (O.M.No.36035/7/95-Estt(SCT) dated 16.01.1998 read with O.M.No.36035/16/95- Estt(SCT) dated 18.02.1997) makes it clear that reservation for persons with disabilities was not available in case of promotion in Group A and Group B posts.

(iii) Further, the DOPT O.M.No.36035/3/2004-Estt(Res) dated