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
[Vested with powers of Civil Court under the
Rights of Persons with Disabilities Act, 2016]
Case No. 4/1268/2016-Wel/CD/3696-98 Dated:
02.01.2018
In
the matter of:
Sh. Ashwani
Gupta
Room No. 6, FAS Branch,
Department of Social Welfare,
GLNS Complex, Delhi Gate,
New Delhi-110002. .………
Complainant
Versus
The
Director,
Directorate
of Social Welfare
Govt. of NCT of Delhi,
GLNS Complex, Delhi Gate,
New Delhi-110002. …...…Respondent
ORDER
The above named complainant a person with 90%
locomotor disability vide his complaint dated 04.05.2016 submitted that he
acquired disability in a bomb blast. He joined Social Welfare Department in
June 2005 in the post of Investigator as a person with disability as per the
order of Hon’ble High Court of Delhi on compensatory ground.
2. The complainant alleged that he was not
considered for promotion to the post of House Father / Mother / Matron
alongwith 12 investigators / Jr. Matrons who were promoted vide order dated
31.05.2013 although he was eligible and there were no other investigators with
disability senior to him. As per
DoP&T OM No. 36035/3/2004/Estt./Res dated 29th December, 2005
the department is required to maintain a roster for effecting reservation for
persons with disabilities. However, neither
any roaster is maintained nor the procedure is followed for making such promotions. He further submitted that the Department
created 6 new posts of House Father / Mother / Matron. As he had completed five years service in 2010, he became eligible
for promotion to the post of House Father / Mother and Matron and to the next post of Welfare Officer on
completion of 10 years of regular service. He represented to the Department on 07.9.2015
and also submitted three reminders but had not received any response till date
of his complaint. The complainant further added that the Department conducted
three DPCs in 1991, 1999 and in 2013 with long gap in between whereas as per the
instructions, DPC should be held every year.
3. The complainant prayed that he should
be considered for promotion from the date of his eligibility at the earliest as
he was suffering financial loss as well as losing seniority.
4. The complaint was taken up with the
respondent vide communication dated 16.05.2016 followed by reminders dated
15.06.2016 and 30.06.2016.
5. The respondent vide letter dated
28.06.2016 informed that the tentative seniority list had been issued for circulation
for promotion to the post of House Father / Mother / Matron for receiving
objections, if any. Thereafter, the
process for promotion would be started
after finalizing the seniority list. The
respondent vide letter dated 6th January, 2017 submitted a status
report as per which the APARs in respect of four Investigators / Jr. Matrons
including the complainant for the year
2014-15, 2015-16, 2015-16 were not available and the concerned officers had been directed to get the
APARs. The process of promotion was already under process and further action would
be taken on receiving the APARs.
6. The complainant vide his rejoinder
dated 27.06.2017 requested for fixing a hearing in the case so that the same is
disposed of.
7. A hearing was scheduled on
24.08.2017. During the hearing the
representative of the respondent submitted an action taken report dated
23.08.2017 as per which the complainant was
promoted to the post of House Father vide Office order dated 04.08.2017. According
to respondent, the grievance of the
complainant stood redressed.
8. While the complainant confirmed that
he had been promoted to the post of House Father, he submitted that his
grievance still remained to be re-addressed in as much as he should have been
promoted in the year 2010 when he become eligible for the post of House Father
on completion of five years of regular service in the post of
Investigator. According to him, as per
the instructions, every year a DPC should be held. The first DPC after 2010 was held in the year
2013 and therefore, he should have been considered for promotion by the DPC
held in 2013 against the reserved vacancies for persons with disabilities as
Point No. 1 of the roster is to be reserved for persons with disabilities and
he is the senior most Group ‘C’ employee with disability. He also produced a copy of roster in respect
of Group`C’ posts for direct recruitment.
9. It was observed that as per
Recruitment Rules notified vide Notification No. F. 21(13)/76-DSW/Estt. Dated
05.08.1988, the post of House Father / House Mother / Matron / Assistant
Boarding/Supdt. in Directorate of Social Welfare are to be filled by promotion
failing which by direct recruitment 100% from amongst Matron & Investigator/Social Worker with five years regular service in the
grade. The complainant completed five
years regular service on 30.06.2010 and thus became eligible for consideration
of promotion to the post of House Father / House Mother / Matron / Assistant
Boarding / Supdt. in the year 2010. As per the copy of roster produced by the
complainant, he was at Sl. No. 15 and
the first person with disability amongst Group `C’ employees.
10. As per Para 2(ii) of DoP&T’s OM No. 36035/3/2004-Estt.(Res)
Dated 29th December’2005, reservation of three percent of the
vacancies are required to be reserved for persons with disabilities in case of
promotion to Group D and Group C posts in which the element of direct recruitment
does not exceed 75%.
11. As per Para 15 of the said OM, reservation
for persons with disabilities is to be
computed based on a separate 100 points vacancy based reservation roster. In the said 100-points roster, point No. 1, 34
and 67 are to be earmarked for persons with disabilities. This would be
applicable till 18.04.2017 after which the Rights of Persons with Disabilities
Act. 2016 provides for reservation of 4% vacancies. It was, therefore observed that the complainant
was entitled for consideration against point No. 1 of the roster for promotion
by a DPC that was held after 30.06.2010.
12. The representative of the respondent
stated that he would have to look into the record in order to ascertain the
availability of reserved vacancy for persons with disabilities, the details of
the DPCs held after 30.06.2010 for the post of House Father and whether the complainant could have been
considered and promoted before 2017. The
respondent was advised to examine the matter and if it was found that the
complainant was entitled to be considered for promotion to the post of House
Father / House Mother / Matron etc. before 2017, the relevant DPCs may be
reviewed and if he is found fit by the DPC, action to anti-date his promotion may be taken
in accordance with the extant rules and the instructions of DoP&T on the
subject. Respondent was directed to
submit an action taken report to this Court within 60 days.
13. On the next date of hearing on
07.11.2017, the representative of the respondent sought adjournment as the
concerned Dy. Director was not well.
14. The respondent vide letter dated
04.12.2017 informed that the case file
of the complainant was being sent to the
Services Deptt. to seek their comments / advice whether the complainant could
be given promotion against the roster point reserved for persons with disabilities
based on the DPC held in 2013. On
06.12.2017, the representative of the respondent added during the hearing that
the case file had already been sent to the Services Deptt. on 04.12.2017 and
action as per their advice would be
taken at the earliest.
15. The complainant submitted that 14
Investigators were promoted to the post of House Father/ House Mother / Matron
based on the DPC held in 2013. There was
no other person with disability in the feeder post and none was ever promoted
against the reserved vacancy. As he is
the senior most person with disability, he was entitled to be promoted in 2013
against point No. 1 of the Roster. He also added that by doing so, no person
would be adversely affected as a vacancy of House Father was kept unfilled on
the directions of Hon’ble CAT. Therefore, his promotion should be anti-dated.
16. Though the facts thus far made
available, prima facie supported the case of the complainant for his consideration in the DPC held in 2013,
yet in order to be sure, the respondent was advised to submit the following
information:
(i) Number
of vacancies of House Father / House Mother / Matron filled year-wise by
promotion since 20th November, 1989 when the reservation in
promotion within Group D, from Group D to Group C and within Group C was
introduced by DoP&T vide OM No. 36035/8/89/Estt.(SCT) dated 20.11.1989 till
2012.
(ii) Number of vacancies of House Father / House
Mother / Matron filled by promotion based on the DPC held in the year 2013.
(iii) Whether any person with disability was ever
promoted to the post of House Father / House Mother / Matron against the
reserved vacancy for persons with
disabilities between 20.11.1989 and 2013.
(iv) A
confirmation that no DPC was held for promotion to the post of House Father/
House Mother / Matron between the date
the complainant became eligible for the promotion in 2010 and 2013.
17. The respondent submitted the following
information vide letter dated 21st December, 2017:
|
(i)Information Sought
|
Number
of vacancies of House Father / House Mother / Matron filled year-wise by
promotion since 20th November, 1989 when the reservation in
promotion within Group D from Group D to Group C and within Group C was
introduced by DoP&T vide OM No. 36035/8/89/Estt.(SCT) dated 20.11.1989
till 2012
|
|
|
Information available
as per record
|
From 20.11.1989
|
01
|
|
|
1990
|
02
|
|
|
1991
|
03 vacancies of 1989
(1) and 1990(2) were filled in 1991
|
|
|
1992
|
Nil
|
|
|
1993
|
Nil
|
|
|
1994
|
Nil
|
|
|
1995
|
01
|
|
|
1996
|
Same 01 vacancy of
1995
|
|
|
1997
|
01 vacancy of 1995-02 vacancy of 1997 Total =03
|
|
|
1998
|
Same 03 posts of 1995
(1) & 1997 (2)
|
|
|
1999
|
03 posts of 1995 (1)
and 1997 (2) were filled in 1999
|
|
|
2000
|
Nil
|
|
|
2001
|
Nil
|
|
|
2002
|
03
|
|
|
2003
|
Nil
|
|
|
2004
|
Nil
|
|
|
2005
|
Nil
|
|
|
2006
|
Nil
|
|
|
2007
|
Nil
|
|
|
2008
|
Nil
|
|
|
2009
|
Nil
|
|
|
2010
|
Nil
|
|
|
2011
|
Nil
|
|
|
2012
|
Nil
|
|
(ii)
|
Number
of vacancies of House Father / House Mother / Matron filled by promotion
based on the DPC held in the year 2013.
|
12
|
|
(iii)
|
Whether
any person with disability was ever promoted to the post of House Father /
House Mother / Matron against the reserved vacancy for persons with disabilities between 20.11.1989 and
2013
|
Nil
|
|
(iv)
|
A
confirmation that no DPC was held for promotion to the post of House Father/
House Mother / Matron between the date
the complainant became eligible for the promotion in 2010 & 2013.
|
No DPC was held for
promotion to the post of House Father / House Mother / Matron between 2010
& 2013
|
‘
18. From the above table it is not clear
whether the respondent filled up 17 vacancies of House Father/ House Mother /
Matron or 06 vacancies from 20.11.1989 till the year 1999. Thereafter 12 vacancies were filled in the
year 2013. Thus, even if only 6 vacancies were filled till 1999, by the time
the complainant became eligible in 2010, the roster had moved to 9th
point and one vacancy was required to be earmarked for persons with
disabilities. Admittedly the complainant
became eligible for promotion to the post of House Father/House Mother / Matron
in accordance with the relevant RRs notified by Social Welfare Department,
Govt. of NCT of Delhi in the year 2010 on completion of 5 years of regular service
in the post of Investigator. The
complainant was the first and senior most person with disability to be
considered for promotion to the said post. As the first DPC was held in the year 2013,
the complainant had a claim to be considered for promotion in that year against point number 1 of the roster. It is thus a clear case of deprivation of the
entitlement of the complainant as he was considered and promoted only in August
2017.
19. It
will be worthwhile to discuss the relevant instructions even at the cost
of repetition before making my
recommendation. DoP&T vide OM
36035/8/89-Estt.(Set) Dated 20.11.1989 decided that when promotions are being
made within Group D, Group `D’ to `C’ and within Group `C’, reservation will be
provided for three categories of disabilities namely Visually Handicapped (VH),
Hearing Impaired (HI) and Orthopaedically Handicapped(OH). The applicability of reservation would
however, be limited to the promotions being made to those posts that are
identified as being capable of being filled / held by appropriate category of
disability. Further, each of the three
categories of persons with disabilities would be allowed reservation at 1%
each.
20. DoP&T consolidated the instructions
on reservation for persons with disabilities and issued the same vide OM No.
36035/3/2004-Estt.(Res) dated 29th December 2005. The relevant
provisions of Para 2, 13 and 15 of the
said OM are reproduced as below:
“2. Quantum of Reservation:
…………….(ii) 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
per cent each .shall be reserved for persons suffering from (i) blindness or
low vision, (ii) hearing impairment and (Hi) locomotor disability or cerebral
palsy in the posts identified for each disability.
13. COMPUTATION OF RESERVATION: ……………all vacancies in promotion quota shall be taken into
account while computing reservation in promotion in Group 'C' and Group 'D'
posts. Since reservation is limited to identified posts only and number of
vacancies reserved is computed on the basis of total vacancies (in identified
posts as well as unidentified posts), it is possible that number of persons
appointed by reservation in an identified post may exceed 3 per cent.
15. EFFECTING RESERVATION - MAINTENANCE OF
ROSTERS:
(a) All establishments are required to
maintain separate 100-point reservation roster registers in the format given in
Annexure II for determining / effecting reservation for the disabled - one each
for Group 'A' posts filled by direct recruitment, Group 'B' posts filled by
direct recruitment, Group 'C' posts filled by direct recruitment, Group 'C'
posts filled by promotion, Group 'D' posts filled by direct recruitment and
Group 'D' posts filled by promotion.
(b)
Each register shall have cycles of 100 points and each cycle of 100 points
shall be divided into three blocks, comprising the following points: 1st Block
- point No.1 to point No.33 2nd Block - point No. 34 to point No.66, 3rd Block - point No.67 to point No. 100..
(c)
Points 1, 34 and 67 of the roster shall be earmarked reserved for persons with
disabilities - one point for each of the three categories of disabilities. The
head of the establishment shall decide the categories of disabilities for which
the points 1, 34 and 67 will be reserved keeping in view all relevant facts.
(d) All the vacancies in Group C posts falling in direct recruitment
quota arising in the establishment shall be entered in the relevant roster
register. If the post falling at point no. 1 is not identified for the disabled
or the head of the establishment considers it desirable not to fill it up by a
disabled person or it is not possible to fill up that post by the disabled for
any other reason, one of the vacancies falling at any of the points from 2 to
33 shall be treated as reserved for the disabled and filled as such. Likewise a
vacancy falling at any of the points from 34 to 66 or from 67 to 100 shall be
filled by the disabled. The purpose of keeping points 1, 34 and 67 as reserved
is to fill up the first available suitable vacancy from 1 to 33, first
available suitable vacancy from 34 to 66 and first available suitable vacancy
from 67 to 100 by persons with disabilities.
(e) There is a possibility that none of the vacancies from 1 to 33 is
suitable for any category of the disabled. In that case two vacancies from 34
to 66 shall be filled as reserved for persons with disabilities. If the
vacancies from 34 to 66 are also not suitable for any category, three vacancies
shall be filled as reserved from the third block containing points from 67 to
100. This means that if no vacancy can be reserved in a particular block, it
shall be carried into the next block.
(t) After all the 100 points of the roster are covered, a fresh cycle of
100 points shall start.
(g) If the number of vacancies in a year is such as to cover only one
block or two, discretion as to which category of the disabled should be
accommodated first shall vest in the head of the establishment, who shall
decide on the basis of the nature of the post, the level of representation of
the specific disabled category in the concerned grade/post etc.
(h) A separate roster shall be maintained for group C posts filled by promotion
and procedure as explained above shall be followed for giving reservation to
persons with disabilities. Likewise two separate rosters shall be maintained for
Group D posts, one for the posts filled by direct recruitment and another for
posts filled by promotion.”
21. It is not disputed that the post of
House Father / House Mother / Matron etc. are identified suitable for persons
with locomotor disability to which the complainant belongs. It is also not in
dispute that the promotion post is a Group `C’ post to which reservation in
promotion for persons with disabilities is applicable.
22. In view of the facts and circumstances
of the case as brought out above, the course of action for the respondent seems
very clear to mitigate the impact of the
deprivation suffered by the complainant and hence it is recommended that the
DPC held for promotion to the post of
House Father / House Mother / Matron in the year 2013 be reviewed and the complainant be
considered against Point No. 1 of the 100 points reservation roster that should be maintained for the posts in Group `C’ without any further loss of
time. If the complainant is found fit by the review DPC, he be promoted
to the said post with all consequential benefits within three months from the
date of receipt of this order and this court be informed of the action take as required under Section 81 of the Rights of
Persons with Disabilities Act, 2016. It
is further recommended that the complainant be considered for promotion to the
next higher post(s) based on his
seniority as per his position in the review DPC.
23. A copy of this order is being forwarded
to Pr.Secretary (Services), Govt. of NCT of Delhi.
24. The matter is disposed of accordingly.
25. Given under my hand and the seal of the
Court this 01st day of January, 2018.
(T.D. Dhariyal)
State Commissioner for Persons with Disabilities
Copy
to: The Pr. Secretary (Services), Services Department, 7th Level,
I.P. Estate, New Delhi-110002.
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