Friday, January 11, 2019

Rajkumar Vs. Commissioner EDMC & Anr. | Case No.83/1021/2018/01/189-191 | Dated:10.01.2019




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
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.83/1021/2018/01/189-191                                   Dated:10.01.2019

In the matter of:

Sh. Rajkumar,
23/334, Trilokpuri,
Delhi-110091.                                                                 ....Complainant

Versus

The Commissioner
East Delhi Municipal Commissioner,
419, Udyog Sadan Patparganj Industrial Area,
Delhi-110096.                                                           .…Respondent No.1

Additional Commissioner (DEMS)
North Delhi Municipal Corporation,
4th Floor, Civic Centre,
JLN Marg, New Delhi-110002.                                   .…Respondent No. 2


Date of hearing:    08.01.2019
                                
                                 Present: Sh. P.N. Gandhi, Admn. Officer, EDMC and
                                                Sh. Rakesh Dutt Sharma, LDC – On behalf of Respondent No.1
                                                          
                                                Ms. Anita Vaid, AC/DEMS – On behalf of Respondent No.2


ORDER

       The above named complainant, a person with 75% locomotor disability vide his complaint dated 09.01.2018 submitted that his name is at S.No. 318 for Sanitary Guide (SG) and he should be considered for promotion to the post of SG based on his seniority.  In his representation dated 17.02.2017 made to the AC, Shahdara (South) Zone, the complainant had requested that the date of his regularisation should 01.04.2006 instead of 24.12.2012 as indicated in the seniority list dated 31.01.2017.

2.    The complaint was taken up with EDMC vide notice dated 18.01.2018 under Rights of Persons with Disabilities Act, 2016, hereinafter referred to as the Act.  As there was no response, a hearing was scheduled on 12.06.2018.  In the meantime, AC, DEMS (HQ), EDMC vide reply dated nil received on 08.06.2018 informed that the complainant was regularised as Paryavaran Sahayak (PS) w.e.f. 01.04.2006 and his seniority number is 336 in the list issued vide letter dated 28.06.2017.  The DPCs were conducted for year-wise vacancies for the years 2012-13, 2013-14, 2014-15, 2015-16 and 2016-17 as per DOPT’s guidelines.  83 eligible PSs have been promoted to the post of SG who had been regularised upto 01.04.1995.  The complainant did not come within the extended zone of consideration upto 5 times the vacancies.

3.    During the hearing on 12.06.2018, the representatives of EDMC submitted a copy of the final seniority list of PSs for promotion to the grade of SG issued on 28.06.2017.  The complainant’s name appears at S.No.336 and his date of regularisation has correctly been indicated as 01.04.2006.  However, from the reply submitted by the respondent on 08.06.2018, it was not clear whether a separate roster for reservation of vacancies for persons with disabilities in promotion from  Group D posts  to Group C posts was being maintained, whether there was any back log of reserved vacancies for them to ascertain whether the complainant could have been promoted against a reserved vacancy for  persons with disabilities on becoming eligible for promotion to the post of Sanitary Guide (SG) from the post of Prayavaran Sahayak (PS).  As per the representatives of the respondent, the eligibility condition for promotion of PS to the post of SG is three years of regular service.  The complainant was regularised in the post of PS in 2006 and he had become eligible for promotion to the post of SG on 01.04.2009.  The first DPC in EDMC for promotion to the post of SG was held in the year 2017 for the year 2012-13. 

4.    Perusal of the final seniority list of P.S. shows that Sh. Ram Niwas is the only person senior to the complainant at Sl.No. 267. Therefore, prima facie the complainant and his senior Sh. Ram Niwas (Sl.No. 267) should have been considered against reserved vacancies for persons with disabilities in the DPC year 2012-13 based on which 38 vacancies were filled up. 

5.    However, before a final view could be taken, the respondent was directed to submit the following information / documents by 09.07.2018:

(i)          Copy of the relevant recruitment rules indicating the eligibility condition for promotion from the post of PS to SG at the relevant time i.e. from 2009 onwards.
(ii)       Whether the zone of consideration is relevant in promotion from PS to SG.  If so, the copy of relevant rules / instructions.
(iii)       Number of vacancies filled in the post of SG since 1989 when reservation in promotion to Group C and within Group D posts was introduced by DoP&T vide their OM No. 36035/8/89/Esstt.(Set) dated 29.11.1989.
(iv)       Number of vacancies reserved and number of persons appointed against the reserved vacancies since 1989 till date.
(v)        If the complainant and similarly placed other persons with disabilities were eligible for promotion against the reserved vacancies, why they should not be considered for position to the post of S.G. against the reserved vacancies by reviewing the relevant DPCs. 

6.    On the next date of hearing on 11.07.2018, none appeared on behalf of EDMC and vide letter dated nil received on 20.07.2018, AO/DEMS (HQ) informed that some of the documents are to be obtained from the Nodal Corporation i.e. North DMC who have been approached and sought 30 days time for submission of the required documents.

7.    On 20.08.2018, the representative of EDMC submitted that the information had not been received from North DMC.  Again on 17.09.2018, none appeared on behalf of EDMC and Commissioner, EDMC was requested to look into the matter personally and submit the information.
8.         During the hearing on 08.10.2018, Assistant Commissioner (DEMS), EDMC submitted a copy of recruitment regulations for the post of Sanitary Guide and DoPT’s guidelines regarding zone of consideration required for promotion to the post of Sanitary Guide (SG). 
9.         It was further submitted that EDMC had sought information from the North DMC regarding the number of vacancies filled and reserved in the post of SG since 1989 vide letter dated 25.06.2018 followed by two reminders dated 09.08.2018 and 05.09.2018. However, North DMC had not responded till that date.  He requested that North DMC may be made a party in the case which is the custodian of all records of unified MCD. 
10.       In view of the above, Additional Commissioner (DEMS), North DMC was impleaded as respondent no. 2 and  was directed to submit the information sought vide para 7 (iii) and (iv) of RoP Dated 12.06.2018 on or before the next date of hearing on 13.11.2018.  A copy of the RoP dated 12.06.2018 and reply of EDMC dated 08.10.2018 were also enclosed. 
11.       It was observed that as per the extract of Swamy’s Establishment and Administration enclosed with the reply dated 08.10.2018 zone of consideration is applicable to ‘selection method’; whereas as per recruitment regulations, the post of Sanitary Guide is neither ‘selection’ nor ‘non-selection’ post (see Serial No. 5 of the RR). Assistant Commissioner (DEMS), EDMC was therefore directed to clarify and submit on or before the next date of hearing on 13.11.2018 the instructions /rules clearly indicating that ‘zone of consideration’ would be applicable to the post of Sanitary Guide in EDMC. 
12.       The respondents were directed that the respondents or their representatives not below the rank of Group ‘A’ officer should be present with all the relevant records and information on the next date of hearing as a simple case is pending for the last many months for want of information that should be readily available with the respondents.
13.       Vide letter dated 28.11.2018, AC/DEMS(HQ), EDMC informed that
“promotion to the post of Sanitary Guide (SG) was done in 2017 for the first time by the EDMC after trifurcation of MCD.  In the RRS for the post of SG there is no mention whether the post is a selection post or non-selection post.  Further, as the records regarding procedure followed for making promotion in the grade of SG earlier in unified MCD and roster of reservation were not available, the vacancies in the grade of SG were proposed to be filled up on adhoc basis.  As per RRs, the candidates are required to have passed middle from recognised schools/Board or equivalent.  Accordingly, such candidates from among the feeder cadre were to be selected on the basis of educational qualification.  Zone of consideration was made applicable on the basis of information available in Part IV of the consolidated instruction compiled in Swamy’s Complete Manual on Establishment & Administration – 2017 edition.”
14.     On 29.11.2018, the representative of EDMC informed that they are in the process of convening DPC in the month of December, 2018 and the name of the complainant has been included for promotion.
15.     On the next date of hearing on 07.01.2019 also the complete information sought vide ROP dated 12.06.2018 had not been submitted even after 6 hearings, representatives of EDMC and North DMC who appeared at 11.30 A.M. on 07.01.2019 without the requisite information were directed to inform the concerned officers to submit the information by 4.00 P.M. on 08.01.2019 and appear for the hearing alongwith the information/written submissions.
16.     On 08.01.2019, the representatives of EDMC and North DMC appeared at 4.00 P.M. on 08.01.2019 and submitted their respective written submissions which are reproduced below:-

EDMC
In the matter of—
Shri Raj Kumar V/s EDMC
Most respectfully, it is submitted that:-
In response to ROP dated 18.01.2018, EDMC has already submitted that name of Sh. Rajkumar S/o Late Sh. Sannu Ram was existing in the Seniority List issued on 31.01.2017 at Serial No. 318, as per service details provided by his DDO.  Promotion to the post of Sanitary Guide (on ad-hoc basis) was done by EDMC for the first time in 2017 against vacancies of 2012-13, 2013-14, 2013-14, 2014-15, 2015-16 and 2016-17.  As some pre- requisites were not complete like Roster, regularization of incumbent Sanitary Guide (SG), only adhoc promotion was made which entails no seniority to the employees.  A total of 83 eligible PSs regularized upto 01.04.1995, were promoted on ad-hoc basis.  It being ad-hoc promotion, seniority of Sanitary Guides has no bearing.
That a copy of RRs for the post of Sanitary Guide, already submitted to the Hon’ble Commission, is attached herewith.
That in subsequent submission to the Hon’ble Court made on 28.11.2018, it was submitted that in the RRs for the post of SG there is no mention whether the post is a selection post or non-selection post.  Further, as the records regarding procedure followed for making promotion in the grade of SG earlier in unified MCD and roster of reservation were not available, the vacancies in the grade of SG were proposed to be filled up on adhoc basis.  As per RRs, the candidates are required to have passed middle from recognized school/Board or equivalent.  Accordingly, such candidates from among the feeder cadre were to be selected on the basis of educational qualification.  Zone of consideration was made applicable on the basis of information available in Part IV of the consolidate instruction complied in Swamy’s Complete Manual on Establishment & Administration-2017 edition.
 That in our another submission dated 08.10.2018 point wise status of the details sought by Hon’ble Court vide its Notice dated 13.06.2018, was given wherein it was explained that vacancy status since, 1989 and information on filling up reserved vacancies prior to trifurcation of MCD, were not held by EDMC and accordingly, the nodal Corporation (North DMC) was approached for the same.
That as submitted earlier also it is reiterated that EDMC has not deprived the complainant of promotion to the post of Sanitary Guide.   As already explained, for vacancy year 2012-13 there were 38 vacancies and the complainant being at 318 Seniority No. could not find place even in extended zone of consideration.
That during the hearing held on 07.10.2018 attended by Assistant Commissioner (DEMS) /EDMC, it was submitted that the department is already processing promotion processes for filling up more than 50 vacancies pertaining to 2018. Since, there are approximately 11000 Paryavaran Sahayaks out of which eligible candidates are to be screened, the process needs some time to complete. Department is required to examine objections against proposed Seniority List from all concerned and also to ensure that no eligible candidate is excluded out of Seniority List.
That the process for drawing new Seniority List of PS for promotion to the post of Sanitary Guide, has already been initiated.  Service details of several new names received for inclusion in the Seniority List, are being verified by the concerned DDOs. On verification of record, the Seniority List will be finalized and DPC meeting will be convened.   However, name of the Sh. Raj Kumar is already included in the Seniority List and his name will be considered.
Admn. Officer (DEMS)
EDMC”
North DMC
    
   “Sir,
        Reference to the hearing on 07.01.2019 in case No.83 /1021/ 2018/01/115 in the matter of Sh. Raj Kumar Vs 1. Commissioner, EDMC, 2. Addl. Commissioner (DEMS), North DMC.
       In the above case, Addl. Com (DEMS), North DMC was impleaded by the Hon’ble Court in October, 2018 only as given in the hearing proceedings on 08.10.2018 on the request of EDMC to provide the number of vacancies filled in the post of SG since 1989 and the number of vacancies for persons with disabilities and the number appointed against reserved categories from till date (Hearing proceedings dated 07.01.2019).
       It is humbly stated that after the trifurcation of MCD all three corporations are separately looking after the appoints/promotions etc. in respect of the employees working in their jurisdiction.  Sh. Raj Kumar is working in East MCD and all record regarding his appointment/promotion etc. is with East MCD only.  It is also added that EDMC, SDMC and North DMC got copies of all records of joint MCD DEMS/HQ, hence EDMC has wrongly mentioned that the old record is available with North DMC only, they are also having the same record.  However, since the information is sought from 1989 (almost 30 years ole), efforts are being made to trace the old record.  As per one old photo copy file of 2010 found in the old record shows that no roster/reservation has been shown while giving promotion to the post of SG, as, probably, above 70% candidates belong to reserved category(ies) already.
       As stated above, although the same record is with EDMC also, it is humbly prayed that EDMC may be directed to search its old record to provide the exact information as the petitioner’s all record is already with them.
Asstt. Commissioner, DEMS/HQ
North DMC”

17.  Ms. Anita Vaid, AC, North DMC stated that all the relevant record in respect of the employees of the erstwhile unified MCD has already been forwarded to the respective DMCs.  EDMC may be asked to provide the information and North DMC has no role to play.

18.  Sh. P.N. Gandhi, Admn. Officer, EDMC stated that reference to North DMC was made with respect to the information about the number of vacancies filled since 1989 and the number of vacancies reserved for persons with disabilities and the number of persons appointed against posts reserved for persons with disabilities since 1989 as the rosters were not available.  He, however, submitted that the said information may not be now relevant to decide the complaint as the complainant is the only person with disability eligible for promotion to the post of Sanitary Guide (SG) in the present list.  The earliest he could have been considered for promotion was 2017 when the adhoc promotions were being made against the vacancies of the past years.  His promotion as SG in 2017 would not change his seniority nor would it result in any financial benefit to him by antedating his promotion on adhoc basis.  The complainant alongwith other eligible candidates is likely to be promoted by the end of February, 2019.  He also stated that since the current promotion is also going to be on adhoc basis, the complainant will be considered as per his seniority and the instructions of DOPT against the reserved vacancies for persons with disabilities in accordance with the relevant Recruitment Rules when the regular promotions are made.  It will be ensured that he or any other person with disability will not be deprived of their entitlement to be considered for promotion against the reserved vacancies for persons with disabilities.

19.  In light of the submissions of the parties and perusal of recruitment regulations for promotion to the post of SG and instructions of DOP&T, zone of consideration would not be applicable for the said post.  Hence the complainant should be considered for promotion based on his seniority subject to fitness.  It is recommended that Respondent No.1 (EDMC) should expedite promotion of the complainant to the post of Sanitary guide which is said to be under process and inform this court about the action taken within 3 months of receipt of this order as required under Section 81 of the Act.  It should also be ensured that whenever regular promotions are made, the complainant be considered against a reserved vacancy for persons with disabilities for the DPC year that was held after 2009 when he became eligible for promotion to the post of Sanitary Guide and be promoted, if found fit by the DPC based on his seniority.  His seniority etc. be fixed accordingly.

20.  The complaint is disposed of with the above recommendation.   

21.  Given under my hand and the seal of the Court this 10th day of January, 2019.     

           (T.D. Dhariyal)
                               State Commissioner for Persons with Disabilities

No comments:

Post a Comment