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,
[Vested with powers of Civil Court under the
Rights of Persons with Disabilities Act,
2016]
1. Case No. 604/1146/2018/11/891-894
Dated:18.02.2019
In
the matter of:
Sh.
Vipin Kumar
A-91,
Gali No. 2, Phase-IV,
Gautam
Vihar, Shiv Vihar,
Delhi-110094.
.............. Complainant
2. Case No. 607/1146/2018/11
In
the matter of:
Sh.
Mahinder Singh
H-93,
Mangolpuri,
Delhi-110083.
..………Complainant
Versus
The
Managing Director,
Delhi
Transport Corporation
Office
at DTC HQ, I.P. Estate,
New
Delhi-110002. …...…Respondent (1)
The
Secretary
Directorate
of Employment (HQ)
Govt.
of NCT of Delhi
IARI
Complex, Pusa,
New
Delhi-110012. ………Respondent (2)
Date of Hearing 14.02.2019
Present: Sh.
Vipin Kumar and Sh. Mahinder Singh, Complainants in person.
Sh. Chander Prakash,
Dy. CGM (Pers)-I for Respondent no. 1.
Sh. Pawan Kumar, SREO
(DC) alongwith Smt. Anuradha Mittal, DEO for Respondent no. 2.
ORDER
The above named
complainants, Sh. Vipin Kumar (59% locomotor disability) and Sh. Mahender (68%
locomotor disability) vide their complaints dated 14.11.2018 submitted that
their names were forwarded by Directorate of Employment for the post of
Conductor in DTC under the category of Ph
candidates for which the interview was scheduled on 09.08.2018. They were also given second opportunity for
interview on 02.11.2018. They had valid
registration numbers with the Directorate of Employment and as per the list
forwarded by the Directorate of Employment, their names appeared in the list of
candidates with disabilities. However,
when they reported for interview on 02.11.2018, they were informed that their
names were not in the list of candidates with disabilities.
2. The
complaints were taken up with the respondent under the Rights of Persons with
Disabilities Act, 2016 hereinafter referred to as ‘Act’ vide notice dated
05.12.2018 followed by reminder dated 08.01.2019. Deputy Manager (PER) DTC vide reply dated 03.01.2019
submitted as under :
“Sir,
Kindly refer to your office
letter No. 604/1146/2018/11/12665 dated 5.12.2018 along with complaint of Shri
Vipin Kumar and Shri Mahinder Singh for the post of conductor in DTC and asked
for Action Taken Report on the complaint.
In this context, it is informed that Delhi
Transport Corporation has given requisition of 2000 vacancies for the post of
Conductor on short term contract in 2010 and 2017 through on line process to
the Directorate of Employment. The Directorate of Employment, GNCTD provided
the lists of candidates with registration ID numbers for the post of Conductor
on short term contract through on line process. The work of
registration/category/allotment of registration ID number with details of candidate
is exclusive the subject matter of Employment Exchange/Directorate of
Employment and the Corporation is considering the candidates sponsored by the
Directorate of Employment in order of registration ID Numbers under said
category for the post of Conductor on
short term contract. As per Govt.
Instructions, there is no reservation in contractual engagement.
In the cases of Shri Vipin Kumar Regd.
ID No.2009178450) and Shri Mahinder Singh (Regd. ID No.2009459241) were shown
in the category of S/Caste in the list supplied by the Directorate of
Employment, GNCTD and as such, they appeared for screening of documents on
2.11.18 and 23.8.18 and the Screening Committee found them eligible for the
post of conductor on short term contract. As per laid down procedure, they were
directed for medical examination as per prescribed medical standards for the
said post and they were found Unfit for the post of Conductor by DTC Medical
Board. Photo-copies of the Screening
Committee and medical examination reports of both complainants are sent
herewith for kind perusal.
From the above, it appeared that
there is no lapse on the part of this Corporation. However, in the fresh list
supplied by Directorate of Employment, their names have appeared in PH category
also. DTC is now sending a fresh
requisition to Directorate of Employment regarding filling up the post of Conductors
on short term contract under PH quota.
After received the updated list from Directorate of Employment, DTC will
re-process the case of Shri Vipin Kumara and Shri Mahinder Singh.
Yours faithfully,
Encl:-
As above
( M.S.Kataria )
Dy.
Manager (Pers.)”
3. As
per the reply dated 04.01.2019 of Directorate of Employment, the employment ID
2009178450 and 2009459241 pertain to Sh. Vipin Kumar and Sh. Mahender
Singh. Their names were sponsored
against the vacancy ID 2017001090 for the post of DTC Bus Conductor. The names of Sh. Vipin Kumar appeared at
serial no. 139 in PH category and at serial no. 2361 in SC category in the list
sent on 07.12.2017 and at serial no. 134 in PH category and at serial no. 7232
in SC category in the list sent on 22.10.2018.
The name of Sh. Mahender Singh appeared at serial no. 154 in ph category and at serial no. 5885 in
SC category in the list sent on 07.12.2017 and at serial no. 230 in PH category
and at serial no. 20012 in SC category in the list of 22.10.2018. The
Department does not play any role in the recruitment/ call letters/ interview
process for the employers.
4. Upon
considering the submissions of the parties, a hearing was scheduled on
14.02.2019.
5. During
the hearing, the parties reiterated their written submissions. Sh. Chander Prakash, Dy. CGM (PER)-I added that
the names of the complainants were checked in the computer screen and print outs
were taken which did not show their names in the list of ph category. They even sent an email on 19.11.2018 to
Directorate of Employment that their names appeared in SC list but not in the
list of ph category. He also informed that about 33 vacancies of
Conductor on contract basis under PH quota are yet to be filled. Due to some technical issues in the portal of
Department of Employment, they are not able to place requisition for list of PH
candidates. As soon as the list is
available, the process of recruitment would start. He however, expressed the reservation on the
applicability of reservation for persons with disabilities in contractual
appointments.
6. Sh.
Pawan Kumar, SREO stated that the data in the list might have been changed at
the end of DTC probably in downloading the file. At their end, they were able to see the names
of the complainants in the list of ph
candidates.
7. The
complainants deposed and clarified during the hearing that they were not
approached by any person for any extraneous consideration. Therefore, from the submissions of the
parties and the discussion during the hearing, it appears that the names of the
complainants did not show in list of PH candidates due to some technical
error. Since the vacancies were reserved
for persons with benchmark disabilities, had the complainant’s names appeared
in the list of candidates with benchmark disabilities for the post of Conductor
on contract basis, they would have been selected and appointed as both the
complainants have valid conductor license, first aid certificate and requisite
educational qualification. However, due
to the error in the process of transmission of data, downloading it, they got
deprived of the appointment.
8. In
the context of the submissions on behalf of DTC, it is in the fitness of things
to refer to the provision under Section 34 of the Rights of Persons with Disabilities
Act, 2016 which came into force on 19 April 2017. The said provision is reproduced below:
34.
Reservation.—(1) Every appropriate Government shall
appoint in every Government establishment, not less than four per cent. of the
total number of vacancies in the cadre strength in each group of posts meant to
be filled with persons with benchmark disabilities of which, one per cent. each
shall be reserved for persons with benchmark disabilities under clauses (a), (b) and (c) and
one per cent. for persons with benchmark disabilities under clauses (d) and (e), namely:—
(a) blindness and low vision;
(b) deaf and hard of hearing;
(c) locomotor disability including
cerebral palsy, leprosy cured, dwarfism, acid attack victims and muscular
dystrophy;
(d) autism, intellectual disability,
specific learning disability and mental illness;
(e) multiple disabilities from amongst
persons under clauses (a) to (d) including deaf-blindness in the
posts identified for each disabilities:
Provided that the reservation in
promotion shall be in accordance with such instructions as are issued by the appropriate
Government from time to time:
Provided further that the appropriate
Government, in consultation with the Chief Commissioner or the State
Commissioner, as the case may be, may, having regard to the type of work
carried out in any Government establishment, by notification and subject to
such conditions, if any, as may be specified in such notifications exempt any
Government establishment from the provisions of this section.
(2) Where
in any recruitment year any vacancy cannot be filled up due to non-availability
of a suitable person with benchmark disability or for any other sufficient
reasons, such vacancy shall be carried forward in the succeeding recruitment
year and if in the succeeding recruitment year also suitable person with
benchmark disability is not available, it may first be filled by interchange
among the five categories and only when there is no person with disability
available for the post in that year, the employer shall fill up the vacancy by
appointment of a person, other than a person with disability:
Provided that if the nature of
vacancies in an establishment is such that a given category of person cannot be
employed, the vacancies may be interchanged among the five categories with the
prior approval of the appropriate Government. 17
(3) The
appropriate Government may, by notification, provide for such relaxation of
upper age limit for employment of persons with benchmark disability, as it
thinks fit.”
9. Prior
to coming into effect of the Rights of Persons with Disabilities Act, 2016,
Persons with Disabilities Act, 1995 was in force. Section 33 of that Act had a similar
provision except that the quantum of reservation was 3% instead of 4%. Neither Section 33 of the Persons with
Disabilities Act, 1995 nor Section 34 of the Rights of Persons with
Disabilities Act, 2016 distinguished between an appointment on regular, long
term, short term, contract, ad-hoc etc. basis. Reservation is to be provided against the
vacancies that are filled. As per OM no.
27/4/67/(II) and Estt./(SCT) dated 24.09.1968 of Ministry of Home Affairs,
Govt. of India, reservation orders should apply to all temporary employments
which are to last for 45 days or more.
Accordingly, with effect from the date of issue of the said OM,
reservation for SCs and STs was instructed to be made in all temporary
appointments except appointments which are to last less than 45 days. In 1968, neither the above mentioned socially
beneficial Acts existed nor was there any provision for reservation of
vacancies for persons with disabilities. The p urpose of providing for
reservation is to ensure that persons with disabilities are given their share
in whatever type of employment is available for the citizens of the country. Considering the purpose and spirit of
enacting the said socially beneficial Act, there can be no reason why a principle
applicable to candidates belonging to SC and ST category on the same issue, should
not apply to persons with disabilities who are in a more disadvantageous
position and in case of the complainants, they are doubly disadvantaged as they
also belong to SC category. The purpose
of making a provision for reservation for persons with disabilities must therefore
be understood in the right perspective which is to economically empower them
and to ensure them a dignified life. Reservation
of vacancies in appointments and employment is one of the means to fulfil these
objectives.
10. In
view of the above discussion, I recommend that DTC should consider the
complainants and other eligible candidates with benchmark disabilities for whom
the post of Conductor has been identified against the reserved vacancies of
conductor including on contract basis in accordance with the provisions of the Act
as expeditiously as possible particularly because, but for the technical/human
error, they would have been appointed in November, 2018 itself. Any further delay in their appointment shall
deprive them of their legitimate right which must be avoided at all costs.
11. Action
taken on the above recommendation be intimated to this Court within three
months from the date of receipt of this order as required under section 81 of
the Act.
12. The
complaints are disposed off.
13. Given
under my hand and the seal of the Court this 18th February, 2019.
(T.D. Dhariyal)
State Commissioner for Persons with
Disabilities
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