Subsequent promotions do not bar rectification of wrongful denial of disability-reserved promotion.

The petitioners were recruited as Upper Division Clerks in 1992 and promoted as Tax Assistants in 1995.

On 31 May 2001, the Ministry of Social Justice and Empowerment identified the post of Inspector in the Customs and Central Excise Department for appointment or promotion of persons with disabilities under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (“the Act”).

Despite this, the petitioners were not considered for promotion as Inspectors, while their juniors were promoted to that post on 18 June 2001.

Instead, the petitioners were promoted as Deputy Office Superintendents on 13 May 2002.

The petitioners made representations, complained to the Chief Commissioner for Persons with Disabilities, and approached the Central Administrative Tribunal (“CAT”) in O.A. No. 366 of 2006.

The CAT directed the respondents to frame an appropriate policy.

Although the Central Board of Excise and Customs framed a policy, it took the position that the petitioners were ineligible for promotion as Inspectors because they had already been promoted as Deputy Office Superintendents.

The petitioners challenged that decision before the CAT, which dismissed their application on the grounds of delay and their having accepted subsequent promotions.

They consequently approached the Gujarat High Court.

Whether the petitioners, being persons with disabilities eligible for promotion, were entitled to be considered for promotion as Inspectors from 18 June 2001, notwithstanding their promotion as Deputy Office Superintendents?

Whether the CAT was justified in dismissing the petitioners’ claim on the grounds of delay and acceptance of subsequent promotions?

Whether the petitioners were entitled to reversion to the post of Tax Assistants, promotion as Inspectors with retrospective effect, and consequential promotions and monetary benefits?

The Court applied the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, particularly the statutory protection against denial of promotion on the ground of disability under Section 47(2).

It also relied on the Ministry of Social Justice and Empowerment notification dated 31 May 2001, which made reservation applicable to the post of Inspector in promotions until the post was classified as a Group ‘B’ non-gazetted post on 11 December 2003.

The Court followed the principle laid down by the Kerala High Court in a materially similar case, holding that where a person with a disability was wrongly promoted as Deputy Office Superintendent instead of being promoted as Inspector, the Department could not rely on the subsequent promotion to defeat the employee’s accrued right to promotion as Inspector.

The Court further applied the principle of equal treatment: once the Department had accepted that position in the comparable Kerala matter, the same principle had to be extended to similarly situated persons with disabilities.

The Court found that the petitioners were eligible for promotion as Inspectors when the reservation policy became applicable on 31 May 2001, and that their juniors were promoted as Inspectors on 18 June 2001.

Their promotion as Deputy Office Superintendents did not cure the original illegality, because that promotion was granted in place of the more beneficial promotional avenue to which they were entitled.

Applying the Kerala High Court’s reasoning, the Court held that the respondents had violated the statutory protection against denial of promotion on the ground of disability by promoting the petitioners as Deputy Office Superintendents while withholding promotion as Inspectors.

The Court rejected the argument that the petitioners’ acceptance of the Deputy Office Superintendent post and subsequent promotions barred relief, observing that they could not be expected to refuse a lawful promotion merely because another promotional avenue had unlawfully been denied to them.

It consequently held that the CAT erred both in applying limitation or delay and in treating the petitioners’ subsequent promotions as a bar to relief.

It directed the respondents to revert the petitioners to the post of Tax Assistants, promote them as Inspectors with effect from 18 June 2001—the date on which their juniors were promoted—and grant them all consequential promotions in the Inspector promotional stream.

The consequential benefits were directed to be calculated and paid within eight weeks, with any excess amounts already paid to be adjusted while computing the benefits payable.