Rakesh Kumar Vs. Chairman, DSSSB | ase No. 4/1308/2016-Wel./CD/ 603-604 | Dated: 30.05.2017

Case Summary:

Employment: Complainant appeared for LDC Combined Examination under SC (PH-OH) category, but was not selected despite vacancies being there in SC, PH-OH and Unreserved categories. Respondent submitted that the cutoff for PH-OH category was 126.25 marks and that the Complainant had only obtained 96.5 marks. Complainant contended that another candidate with a score of 109.75 had been included in the final list so this contention was incorrect. Respondent then submitted that this candidate came under the PH-VH category, which had a different cutoff mark. Respondent elaborated that persons with disabilities who did not avail of the relaxation for their disability would be adjusted against vacancies for their respective vertical (General, OBC, SC) categories, due to which cutoff marks may go lower. However, no chance is expected for people with disabilities in the OH category as they have already been filled. Respondents also submitted documentation detailing he selection process. In light of the fact, it was ruled that the complainant hasn’t been denied the benefit of reservation. 

Order / Judgement: 

In the Court of State Commissioner for Persons with Disabilities

National Capital Territory of Delhi

25- D, Mata Sundari Road, Near Guru Nanak Eye Centre, New Delhi-2

Phone-011-23216002-04, Telefax: 011-23216005, Email: comdis.delhi@nic.in

[Vested with powers of Civil Court under the

Rights of Persons with Disabilities Act, 2016]

Case No. 4/1308/2016-Wel./CD/ 603-604                                   Dated: 30.05.2017

Case No. 4/1485/2016-Wel/CD

In the matter of:

Sh. Rakesh Kumar,

Ward No.-15, Naya Tola Madhopur,

Bakitiyar, Patna,

Bihar-803212.                                                             .……… Complainant     

                                                             Versus

The Chairman,

Delhi Subordinate Services Selection Board,

FC-18, Institutional Area,

Karkardooma, New Delhi-110092.                              …...…Respondent

 

Date of hearing:            26.05.2017         

Present:                          None for Complainant.

Sh. Rajesh Bhatia, Dy.Secretary and Sh. Anil Agarwal, Grade-I  on behalf of respondent.

ORDER

                  Sh. Rakesh Kumar, a person with 45% locomotor disability filed a complaint dated 15.06.2016.  He submitted that he appeared in the Delhi Subordinate Services Selection Board (DSSSB) Combined Examination for LDC Post Code 48/12 under the Roll No. 20000040 under SC (PH-OH) category. He also passed skill test and his documents were verified. However, in the result Notice No. 391 published on 08.06.2016, his name did not appear although 4 vacancies were reserved for PH-OH, 11 for SC and 28 were unreserved.  As per the Govt. of India’s rules, he should be given reservation in all the three quotas. 

2.               The complaint was taken up with the respondent vide communication dated 19.07.2016.  A copy of his complaint was also received from the Office of Chief Commissioner for Persons with Disabilities vide letter dated 21.07.2016 and another from Department of Social Welfare vide letter dated 29.08.2016. One of his complaints was registered as Case No. i.e. 4/1485/2016-Wel-CD. As the subject matter in both the cases is same, this order will dispose of both the said cases.

3.               The respondent vide letter dated 22.09.2016 informed that written examination for the post code 48/12 Delhi Jal Board, 52/12 Rajya Sainik Board & 68/12 Services Department of GNCTD was conducted on 16.11.2014. Candidates upto 109.75 marks for UR/OBC/SC categories were shortlisted for appearing in type writing skill test. The complainant had applied under SC-PH(OH) category for the post of LDC in Delhi Jal Board.  He obtained 96.5 marks in the written examination.  For Delhi Jal Board, cut off  marks for PH-OH category were 126.25.  Since the complainant had obtained 96.5 marks in the written examination he was not selected.

4.               The complainant had submitted another complaint dated 23.1.2016 wherein he mentioned that  the Roll No. 20000005 with a score of 109.75 was included in the final merit list and hence the statement that the cut off marks for PH-OH were 129.75, was incorrect. 

5.               In view of the submissions of the complainant that the information supplied by the respondent was incorrect, a hearing was scheduled on 26.05.2017.  The respondent vide letter dated 18.05.2017 reiterated that the cut off  marks for final result under the post code for PH-OH category were 126.25 for the post of LDC in Delhi Jal Board (Post Code 48/12), whereas the complainant had obtained 96.5 marks in the written examination. Therefore, he was not selected.  The respondent further clarified that the candidate bearing Roll No. 20000005 was selected under PH-VH category for which  the cut off marks were different.   It has further been stated that the result of PH vacancies is being reviewed to ensure norms of horizontal reservation as laid down in the reservation policy.

6.               The representatives of the respondent during the hearing further elaborated that the persons with disabilities who were selected on their own merit without availing any relaxation as a person with disability, will be adjusted against the vacancies for their respective vertical categories i.e. General, OBC, SC.  Some dossiers have also been received back from the user Departments.  Due to which the result will need to be recast. Consequently the cut off marks are likely to be lower.  However,  in case of the complainant who applied for post code 48/12 (LDC in Delhi Jal Board) no change is expected  as all the reserved vacancies for persons with disabilities in OH category have already been filled as on date.  They assured that the relevant instructions with regard to reservation for persons with disabilities will be strictly followed and no injustice will be done to the complainant.

7.               The representatives of the respondent also produced relevant record including all the relevant data in respect of candidates with locomotor disability.  It is observed from the record made available that the complainant appeared at Sl.No. 40  in the list of total 45 persons with locomotor disability (PH-OH). A separate merit list of the candidates with locomotor disability has been drawn for all the vacancies in three post codes i.e. 48/12, 52/12 & 68/12.  Thereafter, the candidates are picked up in the order of their merit amongst the OH category against the reserved vacancies in the post code for which they had applied. For example the complainant who had applied only for post code 48/12,  would be considered  only for post code 48/12. In the said post code- 48/12, out of 319 vacancies, 5 were reserved for OH, 6 for VH and 6 for HH category.    So the complainant at Sl.No. 40 of the merit list has no chance to be selected. 

8.               In the light of the facts mentioned above, the complainant has not been denied the benefit of reservation in accordance with the instructions on the subject.

           The matter is disposed of accordingly.

Given under my hand and the seal of the Court this 30th day of May,2017.     

           (T.D. Dhariyal )

                                             State Commissioner for Persons with Disabilities

Ajmer Singh Vs. Commissioner, North Delhi Municipal Corporation | Case No. 4/1173/2016-Wel/CD/ 601-602 | Dated: 30.05.2017

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In the Court of State Commissioner for Persons with Disabilities

National Capital Territory of Delhi

25- D, Mata Sundari Road, Near Guru Nanak Eye Centre, New Delhi-2

Phone-011-23216002-04, Telefax: 011-23216005, Email: comdis.delhi@nic.in

[Vested with powers of Civil Court under the

Rights of Persons with Disabilities Act, 2016]

Case No. 4/1173/2016-Wel/CD/ 601-602                                    Dated: 30.05.2017

In the matter of:

Sh. Ajmer Singh,

Head Clerk, Language,

North DMC, 16^th Floor, Civic Cenre,

New Delhi-110002.                                                                         .……… Complainant     

                                                                          Versus

The Commissioner,

North Delhi Municipal Corporation,

Dr. S.P.M. Civic Centre,

New Delhi-110002.                                                                      …...…Respondent No.1

 

Date of hearing:            23.05.2017

Present                           Sh. Ajmer Singh, Complainant.

Sh. Pankaj Kumar Sharma, Asstt. Commissioner, CED,

Sh. M.K. Singh, Asstt. Section Officer, CED on behalf of Respondent No.2.             

ORDER

                   The above named complainant, a person with above 40% locomotor disability vide his complaint dated 02.12.2015 submitted that he was appointed as LDC in MCD on 13.07.1983 against a reserved vacancy for persons with disabilities.  He was promoted to the post of UDC on 02.05.1997 on adhoc basis although he should had been promoted in the year 1994.  He was regularised as UDC on 09.06.2003.  He further stated that LDCs who were promoted as UDC on adhoc basis through departmental test in the year 1997, had been regularised in December, 1997.  He was promoted to the post of Head Clerk w.e.f. 01.06.2011 counting his service as UDC from 09.06.2003 instead of 1997. Consequently he did not get complete benefit of being a person with disability as per Govt. of India’s instructions.  He requested that the respondent may be directed to give him seniority in the post of UDC from the year in which vacancy had arisen and promote him to the post of Head Clerk accordingly. 

2.               The complaint was taken up with the respondent vide communication dated 16.02.2016 followed by reminders.  The North Delhi Municipal Corporation, Central Establishment Deptt. vide letter dated 15.07.2016 informed that the complainant was promoted to the post of UDC under PH Quota on adhoc basis under the departmental promotion (seniority-cum-fitness) basis in the year 1997.  He was promoted to the post of Head Clerk (Category  `B’) on regular basis vide office order dated 01.06.2011.   The respondent further submitted that the issue of regularisation of promotions to the post of UDC in respect of LDCs promoted during 1995, 1996 and 1997 was pending in the Tribunal (PB)  and the Hon’ble High Court of Delhi and there was no provision of reservation under Physical Handicapped quota to Group B posts. 

3.               Upon considering the reply of the respondent and rejoinder dated 27.07.2016 of the complainant, a hearing was scheduled on 23.05.17.  During the hearing the representatives of the respondent submitted that vide circular No. S.O.–IV/DA-VII/CED/NDMC/2017/1266 dated 31.01.2017 Sh. Ajmer Singh has been promoted to the post of UDC on regular basis w.e.f. 02.05.1997 and his seniority has been re-fixed in the post of UDC at serial No. 2036A below Smt. Swarn Kumari and above Smt Chitra. Further action to promote the complainant to the post of Asstt. Section Officer (previously Head Clerk) has already been taken and vigilance clearance has been sought vide letter dated 22.05.2017. A copy of the said letter has been taken on record.  Thereafter, the DPC would be held and the complainant would be promoted.  

4.               The complainant submitted that he is satisfied with re-fixation of his seniority in the post of UDC and has requested the respondent for promotion to the post of Asstt. Section Officer and Section Officer.  He requested to expedite his promotion to the next higher grades.

5.               DoP&T, Govt of India had introduced reservation for persons with disabilities in the posts filled by promotion vide their OM No. 36035/08/89-Estt(SCT) dated 20^th November, 1989.  The complainant therefore was entitled to be considered for promotion to the post of UDC after he became eligible for promotion to that post in accordance with the then relevant recruitment rules subject to his position in the seniority list amongst the similarly placed LDCs with disabilities. He should have been considered by the DPC that was held immediately after he became eligible for promotion to the post of UDC. 

6.               Now that the respondent has refixed his seniority in the post of UDC to his satisfaction, the respondent is advised to hold the DPC / review DPC, as the case may be for promotion to the next higher grades, within one month from the date of receipt of this order and promote the complainant from the date he would have been eligible for such promotions in accordance with the rules / instructions on the subject.  This Court may be informed of the action taken in the matter within three months from the date of receipt of this order as required under Section 81 of the Rights of Persons with Disabilities (RPwD) Act, 2016.

7.               During the hearing of this case and other such cases it has been observed that there is a need for training of officers / staff on the issues concerning the rights of persons with disabilities in general and the benefits available to them under various schemes of the Government and their implementation in particular. In the light of this, the respondent may arrange training workshops for the officers and staff of North Delhi Municipal Corporation alongwith South Delhi Municipal Corporation and East Delhi Municipal Corporation.  The Office of State Commissioner for Persons with Disabilities will extend whatever  support it can.

                  The matter is disposed of accordingly.

                  Given under my hand and the seal of the Court this 30th day of May, 2017.     

           (T.D. Dhariyal )

                                            State Commissioner for Persons with Disabilities

Ajmer Singh vs. NDMC | Case No. 4/1173/2016-Wel/CD/601-602 | Dated: 30.05.2017

Case Summary

Employment - Promotion- Complainant with above 40% locomotor disability submitted he was appointed in 1983 as LDC in MCD on reservation for PwD. Complainant was promoted to UDC eventually, but alleged that irregularities in the promotion has resulted in him not getting the appropriate seniority and benefits. During the course of the hearing, the complainant’s seniority was rectified as requested, and further action to promote him to the post of Asst. Section Officer was taken. Complainant requested expediency of promotion to higher grades.

Directions: Respondent to consider the provisions of the 1989 DoPT circular, and is advised to hold the DPC/Review DPC for promotion to higher grades within one month. Observation made that there is a need for training of officers/staff on the issues concerning rights of PwD under government schemes. Respondent to arrange appropriate workshops to remedy this for NDMC, EDMC and SDMC.

Rules/Acts/Orders:  - DoPT OM No. 36035/08/89-Estt(SCT) dt. 20 Nov 1989

Order/ Judgement

In the Court of State Commissioner for Persons with Disabilities

National Capital Territory of Delhi

25- D, Mata Sundari Road, Near Guru Nanak Eye Centre, New Delhi-2

Phone-011-23216002-04, Telefax: 011-23216005, Email: comdis.delhi@nic.in

[Vested with powers of Civil Court under the

Rights of Persons with Disabilities Act, 2016]

Case No. 4/1173/2016-Wel/CD/ 601-602                                              Dated: 30.05.2017

In the matter of:

Sh. Ajmer Singh,

Head Clerk, Language,

North DMC, 16^th Floor, Civic Cenre,

New Delhi-110002.                                                                          .……… Complainant     

                                                                      Versus

The Commissioner,

North Delhi Municipal Corporation,

Dr. S.P.M. Civic Centre,

New Delhi-110002.                                                                       …...…Respondent No.1

 

Date of hearing:           23.05.2017

Present                           Sh. Ajmer Singh, Complainant.

Sh. Pankaj Kumar Sharma, Asstt. Commissioner, CED,

Sh. M.K. Singh, Asstt. Section Officer, CED on behalf of Respondent No.2.

            

ORDER

                   The above named complainant, a person with above 40% locomotor disability vide his complaint dated 02.12.2015 submitted that he was appointed as LDC in MCD on 13.07.1983 against a reserved vacancy for persons with disabilities.  He was promoted to the post of UDC on 02.05.1997 on adhoc basis although he should had been promoted in the year 1994.  He was regularised as UDC on 09.06.2003.  He further stated that LDCs who were promoted as UDC on adhoc basis through departmental test in the year 1997, had been regularised in December, 1997.  He was promoted to the post of Head Clerk w.e.f. 01.06.2011 counting his service as UDC from 09.06.2003 instead of 1997. Consequently he did not get complete benefit of being a person with disability as per Govt. of India’s instructions.  He requested that the respondent may be directed to give him seniority in the post of UDC from the year in which vacancy had arisen and promote him to the post of Head Clerk accordingly. 

2.               The complaint was taken up with the respondent vide communication dated 16.02.2016 followed by reminders.  The North Delhi Municipal Corporation, Central Establishment Deptt. vide letter dated 15.07.2016 informed that the complainant was promoted to the post of UDC under PH Quota on adhoc basis under the departmental promotion (seniority-cum-fitness) basis in the year 1997.  He was promoted to the post of Head Clerk (Category  `B’) on regular basis vide office order dated 01.06.2011.   The respondent further submitted that the issue of regularisation of promotions to the post of UDC in respect of LDCs promoted during 1995, 1996 and 1997 was pending in the Tribunal (PB)  and the Hon’ble High Court of Delhi and there was no provision of reservation under Physical Handicapped quota to Group B posts. 

3.               Upon considering the reply of the respondent and rejoinder dated 27.07.2016 of the complainant, a hearing was scheduled on 23.05.17.  During the hearing the representatives of the respondent submitted that vide circular No. S.O.–IV/DA-VII/CED/NDMC/2017/1266 dated 31.01.2017 Sh. Ajmer Singh has been promoted to the post of UDC on regular basis w.e.f. 02.05.1997 and his seniority has been re-fixed in the post of UDC at serial No. 2036A below Smt. Swarn Kumari and above Smt Chitra. Further action to promote the complainant to the post of Asstt. Section Officer (previously Head Clerk) has already been taken and vigilance clearance has been sought vide letter dated 22.05.2017. A copy of the said letter has been taken on record.  Thereafter, the DPC would be held and the complainant would be promoted.  

4.               The complainant submitted that he is satisfied with re-fixation of his seniority in the post of UDC and has requested the respondent for promotion to the post of Asstt. Section Officer and Section Officer.  He requested to expedite his promotion to the next higher grades.

5.               DoP&T, Govt of India had introduced reservation for persons with disabilities in the posts filled by promotion vide their OM No. 36035/08/89-Estt(SCT) dated 20^th November, 1989.  The complainant therefore was entitled to be considered for promotion to the post of UDC after he became eligible for promotion to that post in accordance with the then relevant recruitment rules subject to his position in the seniority list amongst the similarly placed LDCs with disabilities. He should have been considered by the DPC that was held immediately after he became eligible for promotion to the post of UDC. 

6.               Now that the respondent has refixed his seniority in the post of UDC to his satisfaction, the respondent is advised to hold the DPC / review DPC, as the case may be for promotion to the next higher grades, within one month from the date of receipt of this order and promote the complainant from the date he would have been eligible for such promotions in accordance with the rules / instructions on the subject.  This Court may be informed of the action taken in the matter within three months from the date of receipt of this order as required under Section 81 of the Rights of Persons with Disabilities (RPwD) Act, 2016.

7.               During the hearing of this case and other such cases it has been observed that there is a need for training of officers / staff on the issues concerning the rights of persons with disabilities in general and the benefits available to them under various schemes of the Government and their implementation in particular. In the light of this, the respondent may arrange training workshops for the officers and staff of North Delhi Municipal Corporation alongwith South Delhi Municipal Corporation and East Delhi Municipal Corporation.  The Office of State Commissioner for Persons with Disabilities will extend whatever  support it can.

                  The matter is disposed of accordingly. Given under my hand and the seal of the Court this 30th day of May, 2017.     

                                                                                                                        (T.D. Dhariyal )

                                                              State Commissioner for Persons with Disabilities

Arun Prakash Pandey Vs. Secretary, PWD | Case No. 4/636/2014-Wel./CD/ 581-582 | Dated: 26.05.2017

In the Court of Commissioner for Persons with Disabilities

National Capital Territory of Delhi

25- D, Mata Sundari Road, Near Guru Nanak Eye Centre, New Delhi-2

Phone-23216002-04, Telefax: 23216005

[Vested with power of Civil Court under the Persons with Disability (Equal Opportunity, Protection of Rights and Full Participation) Act, 1995]

Case No. 4/636/2014-Wel./CD/ 581-582                                           Dated: 26.05.2017

In the matter of:

Sh. Arun Prakash Pandey

C/oSh. Mahendra

A-830, Jahangir Puri

Delhi – 110033.                                                          ………….Complainant

Sh. Arun Baroka

Secretary

Public Works Department

5^th Level, B-Wing, Delhi Secretariat

 New Delhi – 110002.                                                 …….……..Respondent

ORDER

           A complaint dated nil received 07.05.2014 of Sh. Arun Prakash Pandey, a person with blindness who was working as LDC, in Govt.Boys Secondary School, Dhaka, Delhi regarding allotment of Govt. accommodation under Medical pool was taken up with the respondent vide communication dated 15.05.2014.

2.       After a series of correspondence and hearing, Flat No. 377 Type II, Timar pur was allotted to the complainant on the direction of the Commissioner for Persons with Disabilities.

3.      During the hearing the complainant pointed out some repair works were needed in the Flat. On the direction of the complainant the respondent informed that vide letter dated 27.11.2015 that the required repairs have been carried out and the complainant had taken the physical possession of quarter no. 377. The complainant vide his letter dated 20.11.2015 who informed that necessary repair works had been completed to his satisfactory in the complain may be closed.

4.     In the light of the above submission of the parties the case is closed.

(T.D.Dhariyal)                         

 State Commissioner for Persons with Disabilities

Surya Narayan Vs Chairman, NDMC | Case No. 4/1260/2015-Wel/CD/ 579-580 | Dated: 26.05.2017

In the Court of State Commissioner for Persons with Disabilities

National Capital Territory of Delhi

25- D, Mata Sundari Road, Near Guru Nanak Eye Centre, New Delhi-2

Phone-011-23216002-04, Telefax: 011-23216005, Email: comdis.delhi@nic.in

[Vested with powers of Civil Court under the

Rights of Persons with Disabilities Act, 2016]

Case No. 4/1260/2015-Wel/CD/ 579-580                                    Dated: 26.05.2017

In the matter of:

Sh Surya Narayan,

Code No. 300971,

Moti Bagh, Horticulture Department,

New Delhi-110021.                                                                         .……… Complainant

                                                                        Versus

The Chairman,

New Delhi Municipal Council,

Palika Kendra,  Parliament Street,

New Delhi-110001.                                                                       .……… Respondent     

                                                                          

Date of hearing:            15.05.2017

Present:                          Surya Narayan, Complainant             

                                         Sh. Sharad Kumar, Joint Director & S.K. Sharma, Sr. Asstt.

                                         A&H, Deptt. of NDMC on behalf of Respondent.

             

ORDER

                   The above named complainant, a person with 60% locomotor disability in left upper limb and left lower limb, vide his complaint received on 03.05.2016 submitted that he has been working as Mali in New Delhi Municipal Council (NDMC)  for the last 27 years. In the year 2011, a list of 109 successful candidates who qualified the written examination and the Interview-cum-Trade Test for the post of Choudhary was issued.  He was at Sl. No. 84.  As per him, 36 Malis have been promoted as Head Malis and as he is the  only Mali with disability, he should be promoted.  The complaint was taken up with the respondent vide communication dated 17.05.2016.

2.               Separately, the respondent vide letter No. SO(A&H)/710/SA-II dated  02.05.2016 submitted that the NDMC had invited applications to fill up 22 backlog vacancies of Mali under disabled quota i.e. 10 nos. for VH, 10 nos. for HH and 02 nos. for OH (One leg).  Some of the applicants had submitted the disability certificates against two posts identified for OH(One Leg).  The respondent sought a clarification whether the applicants who were not covered under  OH (One Leg) category could be considered for the post of Mali. The Office of Commissioner for Persons with Disabilities informed the respondent that NDMC should follow the guidelines as per identified posts.

3.               After exchange of a number of correspondence and hearings, the respondent vide letter dated 09.03.2017 submitted as under:

                  “The post of “Choudhary” in NDMC is equivalent to the post of “Head Mali” at serial no. 51 of  annexure-C of the above instructions and same is to be filled up in P.H. quota in OH category which is identified for a persons with one leg (OL) affected whereas Sh. Surya Narayan, the complainant herein suffers from Post Encephalitic left sided hemi-paresis.

                  In other words, while the post is identified only for a person with one leg affected, the disability of Sh. Surya Narayan is such that the entire left part of the body  i.e. lower as well as upper limb is affected.

                  A clarification in this regard was sought from the office of CCPD through this Office letter dated 09.06.2016 in this case which was replied to by the office of CCPD through its letter dated 12.08.2016 stating that the department should follow guidelines as per identified post.

                  In order dated 10.02.2017 of the Office of CCPD as mentioned above, the above issue which was brought to the notice through the oral submissions has not been addressed.  It may be appreciated that if Sh. Surya Narayan is to be given promotion, in the first instance, a decision will have to be taken by the competent authority to relax the eligibility criteria for the post of Choudhary, which being a policy decision affecting the rules of recruitment would come under the domain of the executive.  It may also be appreciated that for considering any such proposal the competent authority would require to know the reasoning on the basis of which the office of CCPD has reached to the conclusion that the post of Choudhary may be filled up by recruiting a person whose both limbs are affected whereas the instructions provided otherwise.

                  Further it is noted that the office of the CCPD in its order dated 10.02.2017 has directed to give promotion to Sh. Surya Narayan from the due date, a term which may lead to different interpretations.  It is stated that till date the prescribed norms render Sh. Surya Narayan as ineligible for the post of Choudhary.  Even if it is presumed that taking into account the reasoning to be given by the Office of CCPD, the competent authority decides to relax/revise the norms, legally such decision will be effective from a prospective date only.

                  It is also to be stated that since the post of Malis and Choudharies occur in various departments of Central Governments and Local Self Governments, such a decision will have wider ramifications.

                  In view of above, the Office of CCPD is requested to have a re-look on the issue and pass a Speaking Order.”

4.               Upon considering the above contention, it was decided to hold a hearing on 15.05.2017.  During the hearing, the representatives of the respondent reiterated their written submissions and added that the duties of the Choudhary are slightly different from that of Mali.  The area of work of Choudhary is much wider than a Mali who is required to work at a particular location.  Furthermore,  the post of Choudhary is not identified for persons with disabilities in one leg as well as in the arm.

5.               I do observe that the issue deserved to be examined in the Office of Commissioner for Persons with Disabilities in more depth and in accordance with the relevant provisions of the Persons with Disabilities Act, 1995, the relevant notification and instructions of the appropriate Government before conveying its views.  I have perused the record and the relevant provisions of the legislation and the Government’s instructions on the subject which are mentioned in the succeeding paragraphs.

6.               As per DoP&T’s instructions contained in OM No. 36035/3/2004/Estt/Res dated 29^th December, 2005 three percent of the vacancies in case of promotion to Group D,  and Group C posts in which the element of direct recruitment, if any, does not exceed 75%, shall be reserved for persons with disabilities, of which one percent each shall be reserved for persons suffering from (i) blindness and low vision, (ii) hearing impairment and (iii) locomotor disability or cerebral palsy in the post identified for each disability.  The representative of the respondent clarified during the hearing that the post of Choudhary is to be filled 100% by promotion.

7.               Para 3 of the above mentioned OM provides that reservation for persons with disabilities shall be computed on the basis of total number of vacancies occurring in all Group C & D posts as the case may be.  Para 15 of the said OM provides for earmarking points 1, 34 & 67 of the roster in each cycle of 100 points for persons with disabilities.  Govt. of India introduced reservation for persons with disabilities in the posts filled by promotion vide O.M.No. 36035/08/89-Estt(Sect)  dated 20^th November, 1989.  Therefore, the respondent was required to reserve vacancies for persons with disabilities in Group C posts, to which the post of Choudhary belongs, from November, 1989.  

8.               The posts suitable for persons with disabilities were identified by DoP&T in 1986.  Thereafter, the Ministry of Social Justice and Empowerment, Govt. of India have reviewed the list and the latest one was issued vide notification dated 29^th July, 2013.  Note 2, 3 & 4 of the said notification read as under:

“Note 2: The list of posts being notified is not an exhaustive list. The Ministries, Departments, Public Sector Undertakings and the autonomous bodies may further supplement the list.

Note 3: If a post is already held by a person with disability, it shall be deemed to have been identified.

Note 4: If a post is identified in the feeder grade, the post in the promotional grade should also stand identified”.

9.               As per  the list of identified posts issued vide the said notification, Head Mali appearing at Sl.No. 51 of the list, is identified for OL, HH, LV, B.  Physical requirement for the post are - ST= Standing, W= working, MF= manipulation by fingers, PP= pulling and pushing, L=lifting, BL=bending. The work conditions are – work performed mostly outside.  Incumbent should be functionally able to complete the assignment task efficiently with aids and appliances whenever necessary.

10.             Admittedly, the complainant qualified the written examination and interview- cum-trade test in the year 2011.  The complainant has been working as Mali for more than 27 years.  Therefore, the post of Mali shall deem to have been identified for persons with disabilities in lower limb and in the upper limb. The duties of Choudhary are stated to be different from that of a Mali,  to the extent that a Choudhary would have to move around for supervising the work of other Malis. The additional disability is in his upper left arm, which  would not in any way affect his efficiency to perform his work. As the post of Choudhary is a feeder grade for Mali, the former should also stand identified for the person with disability in lower limb and in the upper limb in accordance with Note 4 of Ministry of Social Justice and Empowerment’s notification dated 29^th July, 2013. Therefore,  the complainant  should have been considered for promotion to the post of Choudhary, if his statement that he is the only Mali with disability is true.

11.             In the light of the above mentioned position and if the statement of the complainant that 36 malis out of the list of 109 have already been promoted and he is the only Mali with disability is true, in my opinion, a grave injustice has been done to the complainant by not promoting him to the post of Choudhary alongwith the first batch of Malis.  Any delay in his promotion now would amount to perpetuation of injustice.  I therefore, recommend that Sh. Surya Narayan be promoted to the post of Choudhary from the date he should have been promoted in accordance with the above mentioned instructions of DoP&T and the Notification of Ministry of Social Justice and Empowerment within one month from the date of receipt of this order with all consequential benefits as per rules and inform this Court of the action taken within three months from the date of receipt of this order.

                  

       The matter is disposed of accordingly.

      Given under my hand and the seal of the Court this 26^th  day of May,2017.     

                  This order be also sent by email to the respondent at sks741965@gmail.com.

           (T.D. Dhariyal )

                                        State Commissioner for Persons with Disabilities