Rama Shankar Ram Vs. MS, Babu Jagjivan Ram Memorial Hospital &Ors. | Case No. 122/1021/2018/02/1333-1336 | Dated: 15.03.2019

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-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]

Show-cause-cum-hearing notice

Case No. 122/1021/2018/02/1333-1336                Dated: 15.03.2019

In the matter of:

Sh. Rama Shankar Ram,
B-486, Delhi Administration Flats,
1^st Floor, Timarpur,
Delhi-110054.                                                …………..Complainant

Versus

The Medical Suprintendent,

Babu Jagjivan Ram Memorial Hospital,

Govt. of NCT of Delhi,

Jahangir Puri, New Delhi-110033                       ……..Respondent No. 1

The Secretary,
Services Department,
Govt. of NCT of Delhi,
7^th Level, Delhi Secretariat,
I.P. Estate, New Delhi-110002                         ..……….Respondent No. 2

The Secretary,
Revenue Department,
Govt. of NCT of Delhi,
5-Sham Nath Marg,
Delhi-110054                                                    .……….Respondent No. 3

                                                            ORDER

1.           The above named complainant a persons with 50% locomotor disability vide his complaint dated 10.02.2018 submitted that he is working in a Group ‘D’ Post in Babu Jagjivan Ram Memorial (BJRM) Hospital, Jahangir Puri.  He is a graduate and can work on computer. He was working in an office of Delhi Energy Development Authority (DEDA) since 01.09.1990.  He was regularized in DEDA on 11.03.1995.  He was posted to BJRM Hospital w.e.f 25.02.2002.  He has been working with honesty all these years, and has been requesting Principal Secretary Services for his promotion.  Despite this, his name is not appeared in the promotion list issued by the Services Department recently.  Those who are appointed up to the year 2000 have been included in that promotion list.  He alleged that by not counting his post service, he is being deprived of his promotion and thus injustice is being done to a person with disability.  He requested that his post service w.e.f. 11.03.1995 should be counted for the promotion and issued for promoted at the earliest.

2.       As the complainant had not mentioned the name of his post, the post he was working, the post he wanted to be promoted to, and had not enclosed copies of his representations to the Services Department and their replies, he was advised to submit the information/ documents vide letter dated 22.02.2018.  Vide the letter dated 05.03.2018, the complainant informed that he was working in the post of Nursing Assistant and has been requesting Services Department for promotion to the post of LDC and also submit that the copied of his representation.

3.       From the papers submitted by the complainant it revealed that the complainant was working as a Group ‘D’ casual Employee (bell that) in DEDA.  On closer of DEDA, he was among the employees who had declared surplus.  Services Department had informed him vide letter dated 04.01.2018 in response his representation of the complainant to the Chief Minister, Government NCT of Delhi that the complainant was a casual employee in DEDA and was appointed as a Group ‘D’ employee on regular basis on the directions of Hon. High Court.  His post service as casual employee of DEDA could not be counted for any purpose as per DoP&T guidelines.  It has further been mentioned in that letter that have been in case of regular employees of DEDA who had redeployed after being declared surplus, the past service standard by them in DEDA is not counted for seniority/ promotion in the redeployed post.

4.       In light of this the complainant was informed though service on casual basis cannot be counted for the purpose of promotion, the complainant was advised to submit documents, if any, in supporting of his claim for treating him as a regular employee w.e.f 11.03.1995 and he was also heard.

5.       Although the complainant did not submit the relevant supporting documents, the complainant was taken up with the respondents vide notice dated 31.05.2018 directing them to submitted para wise comments.

6.       Respondent No. 2 vide replied dated 22.06.2018 submitted as under:

1.    “Due to reduction in the activities of the Poloroid Unit and closure of Battery Bus Scheme of the Delhi Energy Development Agency (DEDA), an Autonomous Body under the Govt. of Delhi, the Agency was not able to provide work to a number of its regular (as also casual) employees.  While declaring its some regular staff surplus, DEDA had to terminate the services of its casual employees.  Aggrieved by this decision of DEDA Casual Employees wen tot the Hon’ble High Court by way of filing Writs for Redressal of their grievances.  While redressing the grievances of these Ex-Casual Employees of DEDA, Hon’ble High Court vide judgment dated 07.11.2001 (Copy enclosed) held as under:-

“……if any recruitment is made in future the persons on thelist shall first be recruited provided they are registered with the Employment Exchange and if qualified for appointment to the relevant post.  It was further observed that age relaxation will be granted to these persons to the extent of period of service rendered by them with the respondents.”

2.    It is also mentioned here that the Hon’ble High Court in the same judgment has also held as under:

“The list of all the Group-C & Group-D employees with their correct addresses will be circulated to all the Heads of various Departments and also to Autonomous Bodies and Societies under Delhi Govt. with the direction from the Principal Secretary (Services) that the persons in the list shall be given preference in filling up all the future vacancies keeping in view the education qualification and experience.  Copies of the directions as contained in the order dated 11 May, 2001 and also herein shall also be circulated along with the list of names.  In case there is any change in address the persons concerned may inform the DEDA within 10 days from today.  It is further directed that the office of the Principal Secretary (Services) shall monitor the absorption of all these petitioners on a regular basis till they are suitably absorbed.”

3.    In compliance of the said directions of the Hon’ble High Court, Services Department circulated the list of 111 Group-D and 30 Group-C Ex-casual Employees of DEDA (as was furnished by the DEDA) to all the Heads of Departments, Autonomous Bodies, PSUs/ Autonomous Bodies/ Corporations under Govt. of N.C.T. of Delhi included the name of Sh. Ramashankar Ram vide letter dated 11.12.2001 (Copy enclosed) with the specific direction to give preference to these Ex-Casual Employees while making recruitment in terms of the directions contained in the judgments dated 07.11.2001 of the Hon’ble High Court.

4.    As per information available in this department, Sh. Ramashankar Ram (DOB: 01.11.1969) S/o Sh. Bihari Ram, was working in erstwhile DEDA as Group ‘D’ casual employee (Beldar) since 01.09.1990 (Copy enclosed).  As per directions of Hon’ble  High Court, Sh. Ramashankar Ram was appointed in DHS as Group ‘D’ employee (Copy enclosed) on regular basis in the year 2002 (25.05.2002 as stated by the applicant).  Since the official has been appointed as a direct recruitee w.e.f. 25.05.2002, as such, his past service could not be counted for any purpose.

5.     It is worthwhile to mention here that in another writ petition preferred by the casual/ ex-casual employees of erstwhile DEDA [Writ Petition (C) No. 9665-71/2006].  The Hon’ble High Court inter alia held as under:

“I have gone through the order dated 7^th November, 2001 as also have considered the submissions of learned counsel for the petitioners.  I am afraid, I cannot read the order in question as has been sought to be read by the learned counsel.  There is nothing in the order to indicate that the petitioners were to be accommodated and regularized in the Group ‘C’ posts, come what may, even if they failed to qualify the typing test.  As has been rightly observed by this court while disposing of the contempt petition, the order dated 7^th November, 2001, did not require any relaxation for the test.  Rather, the order clarified that the respondents were free to terminate the services of the petitioners in accordance with law, here though, is a case where services of none of the petitioners  were terminated and they, as already noticed above, were accommodated in GROUP ‘D’ posts.  Therefore, to say that the order dated 7^th November, 2001 has not been complied with would be incorrect…    (Copy enclosed)

…..For the foregoing reasons, I find no merit in the writ petition.  The same is dismissed.” (Copy enclosed)

6.    In addition to above, as per information available in this department, seniority number of Sh. Ramashankar Ram is ‘2540’ as per final eligibility list.  It has also mentioned that documents in r/o Class-IV employees have been called for, upto Snty. No. 2251, for promotion to the post of Gr-IV (DASS) from various Departments of GNCTD.”

7.       Respondent No. 1 vide letter dated 19.07.2018 forwarded the particulars of the complainant to department for considering the complainant for promotion to the post of LDC under PH/SC category.  They also stated therein that Sh. Rama Shankar Ram was initially appointed as Beldar on dated 11.03.1995 in DEDA.  Due to binding up of DEDA, he was rendered surplus and redeployed/ appointed in the Directorate of Health Services & posted in BJRM Hospital on 24.05.2002. The complainant vide his rejoinder dated 12.07.2018 requested for a hearing so that he could present his case.

8.       Upon considering the replied the respondent and the rejoinder of the complainant a hearing was held on 27.11.2018.  During hearing the complainant submitted that he was treated as casual employee and therefore his service from 1995 to 2002 is not being counted for promotion.  He produced a copy of the office order dated 11.03.1995 of Delhi Energy Development Agency (DEDA) vide which he (Sl. No. 66), along with 67 others was granted the temporary status and regularized as Beldar with immediate effect.  According to him, had he been treated as a regular employee w.e.f. 11.03.1995, he would have been declared surplus before 2002 and would have been given the benefit of service in DEDA from the date of his being declared as surplus employee in DEDA.  He, however, did not have the information whether any of the 68 persons in the said list has been promoted.  The complainant also added that he met Secretary (Services) and the concerned officials of Services Department who informed him that his service could be counted from the date of his regularization i.e. 11.03.1995 for the purpose of promotion if he produced the relevant record.

9.          Given under my hand and the seal of the Court this 12^th day of March,

2019.

  

(T.D. Dhariyal)

State Commissioner for Persons with Disabilities

Karamvir Singh Vs. Dte of Education | Case No. 4/1733/2017-Wel./CD/1177-1178 | Dated: 07.03.2019

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-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. 4/1733/2017-Wel./CD/1177-1178       Dated: 07.03.2019

In the matter of:

Sh. Karamvir Singh

R/o 2116, Type IV

Delhi Administration Flats

Gulabi Bagh, Delhi-110007                           ……................ Petitioner

                                          Versus                           

The Director,

Directorate of Education,

Old Secretariat,

Delhi-110054                                                ...………...…Respondent

Date of Order        26.02.2019

           

ORDER

The above named complainant, a person with 90% locomotor disability vide his complaint dated 24.07.2017 submitted that he is working as PGT (Hindi) in Govt. Sarvodya Bal Vidyalaya, Nangloi, Delhi.  On 29.11.2016 he slipped down in his village Bhaini Bharo, District Rohtak and suffered ligament injury in his left shoulder and was not able to move it till the date of his fitness for rejoining the work.  The doctor at Pt. B.D. Sharma, PGIMS, Rohtak advised him bed rest.  He informed the Principal of his school vide his letter dated 30.11.2016 for special disability leave for 2 weeks.  The Principal sought clarification from Dy. Director Education (DDE), West-B who declined to grant special disability leave and stopped payment of his salary for the month of February, 2017.  The complainant contended that DDE, West B wrongly interpreted the CCS Leave Rules 1972 and have ignored the provisions of OM no.18017/01/2014-Estt. (L) dated 25.02.2015.  Para 5 of the said OM provides that  “Leave applied on medical certificate in connection with disability should not be refused or revoked without reference to a medical Authority, whose advice shall be binding.  The ceiling on maximum permissible leave laid down in rule 12 may not be applied to leave on medical certificate applied in connection with the disability.  He further contended that para 2 & 3 of the OM also protect his rights which is being denied to him by respondent no. 1 & 2 which is arbitrary and illegal.  The complainant requested that the respondent may be summoned and directed to take corrective measures by sanctioning special disability leave to him. 

2.       The complaint was taken up with the respondent vide notice dated 29.09.2017 followed by reminder dated 03.11.2017. DDE, West-B vide communication dated 16.11.2017 informed the complainant that his case file was forwarded to the Competent Authority who also rejected the request and upheld the decision of the District Authority in light of Rule 12.  The matter was again examined at District Level in light of the Rule 12 of Rules which deal with special disability leave which provides that the special disability leave is admissible to all the employees “when disabled by injury intentionally or accidently inflicted or caused in, or in consequence of the due performance of official duties or in consequence of official position”.

3.       The complainant in his rejoinder dated 20.11.2017 contended that his case was to be considered under the provisions of Section 47 of Persons with Disabilities (Equal Opportunity, Protection of Rights and Full Participation) Act, 1995 which provides that no establishment shall dispense with or reduce in rank an employee who acquires a disability during his service.  DoPT’s OM no.18017/01/2014-Estt. (L) dated 25.02.2015 also clarifies that leave applied on medical certificate in connection with disability should not be refused and Leave Rule and CCS Rule 12  would not apply in connection with disabilities.  If the leave had been debited for the period after Govt. servant is declared in capacitated, the same shall be remitted back into his /her leave account. 

4.       The complainant also referred to an order dated 23.02.2015 of Commissioner for Persons with Disabilities of Govt. of Haryana which was upheld by the Hon’ble High Court.  Accordingly, the complainant claimed that he should be sanctioned disability leave for the period from 29.11.2016 to 06.03.2017. 

5.       DDE, W-B vide letter dated 16.11.2017 contended that special disability leave is admissible to all the employees when disabled by injury intentionally or accidently inflicted or caused in or in consequence of the due performance of official duties or in consequence of his official position.  Therefore, since the injury was caused when the complainant was at his home town and the injury was not in consequence of his official position, the complainant was not entitled to special disability leave. 

6.       Upon considering the written submission of parties, and after hearing on 18.12.2017, 22.01.2018, 28.02.2018, DDE W-B with the approval of the Competent Authority and the DoE passed a speaking order dated 28.04.2018.  Relevant extracts of the order are as under:

“...Firstly, from a close perusal of para 2 above, it can be safely stated that the para is not about Special Disability Leave. Rather, it is about ensuring safety of service and service conditions of an employee who has acquired disability during service. This para nowhere speaks about any special disability leave provisions for the employees. And his is definitely not a case of termination of service or denial of promotion etc. Therefore, applicant’s claim in r/o Disability Leave on the basis of para 2 above does not hold any merit. Para 5 of the O.M. mandates reference to a medical authority.

            Importantly, Rules 44 & 45 of the CCS Leave Rules deal with Special Disability Leave. Rule 44 is reproduced for a ready, reference herein under:

            “44. Special Disability Leave for injury intentionally inflicted:

            1) The authority to grant leave may grant special disability leave to a Government servant (whether permanent or temporary) who is disabled by injury intentionally inflicted or caused in, or in consequence of the due performance of his official position”.

            From the representation dated 07.03.2017 submitted by the applicant, it becomes evidently clear that the injury was not intentionally inflicted on him nor was it caused ‘in consequence of the due performance of his official duties’ as the employee had gone to his native place Rohtak to attend the last rites of his deceased mother when his foot slipped by chance, thus, causing ligament injury to his left shoulder. Clearly, the applicant’s case does not fall in this category.

Lastly, Rule 45 of the CCS Leave Rules deals with accidental injuries (i.e. not inflicted intentionally). For the clarity of the case, it is important to quote and properly appreciate as to what Rule 45 says. It says:

            “45. Special Disability Leave for Accidental Injury:

(1)          The Provisions of Rules 44 shall apply also to a Government servant whether permanent or temporary, who is disabled by injury accidentally incurred in, or in consequence of the due performance of his official duties or in consequence of his official position, or by illness incurred in the performance of any particular duty, which has the effect of increasing his liability to illness or injury beyond the ordinary risk attaching to the civil post which he holds”.

Here again the words to be marked are “disabled by injury accidentally incurred in, or in consequence of, the due performance of official duties or inconsequence of his official position”. Needless to say that the applicant had not visited his native place Rohtak in Official capacity nor did he get injured in consequence of performing his official duty.

            In these circumstances, it can be safely concluded that the provision of special disability leave in r/o an employee is for those cases wherein the injury is in consequence of discharge of official duty, whereas in this case the employee was in his home town for his personal obligation when he got his left shoulder injured.

Now, therefore, the undersigned is of the considered view that the applicant may apply for leave as due/ eligible to him but his case does not merit grant of leave under provisions of Special Disability Leave u/r 44 &45 of the CCL Leave Rules.

            This issue with prior approval of competent authority.

(JUHIAGGARWAL)
DDE (WEST-B)”

7.       Thereafter the complainant submitted that the DoE is harassing him by not granting him special disability leave. 

8.       In view of the fact that DoPT OM no.18017/01/2014-Estt. (L) dated 25.02.2015 specifically states that the leave applied on medical certificate ‘’in connection with disability” should not be refused or revoked without reference to a Medical Authority, whose advice shall be binding, the complainant was directed to submit documents (report from medical authority) indicating the percentage of disability due to the ligament injury of his left shoulder and that he was declared incapacitated to join the duty because of that disability vide letter dated 12.06.2018.  All India Institute of Medical Sciences, New Delhi who had assessed his disability and issued disability certificate on 22.10.1990, was also requested that the assessment of disability of the complainant due to injury of his shoulder may be done and to indicate the percentage of disability due to said injury before taking a view to recommend or otherwise his case for grant of special disability leave.

9.       All India Institute of Medical Sciences, New Delhi vide letter dated 06.11.2018 informed as under:

“The disability due to multiligamental pathology of left shoulder without surgical intervention is 18% (Eighteen Percent), when calculated in isolation without any disability of any other part of the body.

However, the patient is also suffering from Post Polio Residual Paralysis of Bilateral Lower Limb. The disability when calculated together for bilateral lower limb and shoulder is 90% (Ninety Percent) without any surgical intervention of his shoulder.

Patient has a limited ability due to weakness in bilateral lower limb as patient has to use upper limb for daily living.”

10.     The following points raised by the complainant need to be addressed:

i)             Whether the complainant’s case is covered under Section 47 of the Persons with Disabilities Act, 1995.

ii)            Whether the order of Commissioner for Persons with Disabilities, Govt. of Haryana in the case of Sh. Sameer Narula Vs. Punjab National Bank upheld by Hon’ble High Court of Punjab and Haryana vide order dated 27.11.2015 is relevant to the complainant’s case.

iii)          Whether the complainant’s case is covered under DoPT’s OM no.18017/01/2014-Estt. (L) dated 25.02.2015.

11.     Section 47 of the Persons with Disabilities Act, 1995 provides as under:

47.       (1) No establishment shall dispense with or reduce in rank, an employee who acquires a disability during his service.

Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits.

Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.

(2) No promotion shall be denied to a person merely on the ground of his disability:

Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.

12.     The above provision is apparently for cases in which a Govt. employee acquires a disability during his/her service that renders him/her unsuitable for the post he/she was holding.  Section 47 is applicable irrespective of whether the employee was performing any official duty or otherwise.  It is very clear that nature/the severity of the disability so acquired should be such that the employee concerned is not able to perform the functions of the post he /she was holding.  Sh. Sameer Narwal, whose case was before the Commissioner for Persons with Disabilities, Haryana and Punjab & Haryana High Court, was not paid his salary and allowances on the ground that he acquired disability outside the duty hours and not during the course of his duties. 

13.     Whereas in the instant case, the nature or the extent of disability acquired by the complainant as a consequence of the injury in his shoulder was not such as to render him not suitable for the post of PGT (Hindi) that he was holding.  The treating doctor only advised him bed rest from 29.11.2016 to 06.03.2017 for a period of 98 days at the end of which he was declared fit to join the duty.  AIIMS, New Delhi has certified that the extent of disability due to the said injury is 18% which did not increase the overall percentage of disability of the complainant which was 90%.  Therefore, Section 47 of PwD Act, 1995 is not applicable to the case of the complaint, and the order of Hon’ble High Court of Punjab and Haryana is not relevant to the facts of this case. 

14.     The DoPT’s OM dated 25.02.2015 also provides that the leave on medical certificate in connection with disability should not be debited from the account of govt. servant and if the same has been debited, it should be remitted back into his/her leave account.  For this to happen, the affected employee should have acquired disability and at the end of the treatment, he/ she should be issued a certificate of disability, as provided in CCS (Leave) Second  Amendment Rules, 2018 notified vide GSR 438(E) dated 03.04.2018. The said amendment provides that the Medical Authority for the purpose of special disability leave shall issue certificate of disability in Form 3A and which, among other things, shall recommend that the Govt. servant may be granted leave on medical ground.  If it were not so, any Govt. employee who is advised bed rest for any ailment and for any duration could claim special disability leave, which certainly is not the intent of Section 47 of the Persons with Disabilities Act, 1995 or CCS (Leave) Second Amendment Rules, 2018. Disability, as per clause (f a) of the Amendment Leave Rules, 2018 means “specified disability” “benchmark disability” and “disability having high support needs” as referred to in the Rights of Persons with Disability Act, 2016. 

15.     As the complainant was incapacitated due to the injury in his shoulder and he acquired 18% permanent disability due to the said injury, it is recommended that the complainant’s request for grant of special disability leave should be considered, if he produces the recommendation from the medical authority in Form 3A in term of DoPT’s OM no. 18017/1/2014-ESA(L) dated 25.02.2015 and consequent amendment to CCS (Leave) Rules vide Notification dated 11.12.2018. It may be noted that para 7 of DoPT’s OM dated 25.02.2015 mentioned that necessary amendments to CCS (Leave) Rules, 1972 were being notified separately. Hence the request of the complaint should not be rejected on the ground that the amendment notification is dated 11.12.2018.

16.     Action taken report on the above mentioned recommendations be submitted to this Court within three months from the date of receipt of this order as required under Section 81 of the Act.

17.     The complaint is disposed off.

18.     Given under my hand and the seal of the Court this 07^th day of March, 2019.     

(T.D. Dhariyal)

State Commissioner for Persons with Disabilities

Suo Motu Vs. Commissioner, Deptt of Trade & Taxes | Case No. 716/1011/2019/02/1134-1135 | Dated: 06.03.2019

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-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. 716/1011/2019/02/1134-1135                       Dated: 06.03.2019

In the matter of:

Suo Motu

    

Versus

The Commissioner,

Department of Trade & Taxes

Govt. of NCT of Delhi

3^rd Floor, Vyapar Bhawan

IP Estate

New Delhi-110002.                                                        ...…Respondent

Date of hearing:        01.03.2019

Present: Sh. Amiya Kumar Shukla, GSTO (HR) alongwith Sh. B. Chander, ASO for respondent.

   

ORDER

Dr. Ram Kishan, a person with locomotor disability vide his email dated 30.01.2019 submitted that Department of Trade & Taxes under Govt. of NCT of Delhi has invited applications for Data Entry Operator (DEO) on contract basis.  However, reservation for persons with disabilities in the said recruitment has not been provided.

2.       The matter was taken up with the respondent vide show cause-cum-hearing notice dated 05.02.2019 under the Provisions of Rights of Persons with Disabilities Act, 2016, hereinafter referred to as ‘Act’.

3.       Department of Trade & Taxes, Human Resource Branch vide letter dated 18.02.2019 submitted as under:

“1)       This department does not recruit DEOs directly; instead they are outsourced through some Private Agency selected through GEM (Govt. e-Marketplace) Portal.

2)         Currently, the DEOs are being outsourced through GA Digital Web word Pvt. Ltd. Company through Gem Portal after observing all codal formalities as per GFR. Previously DEOs had been outsourced through ICSIL company.

3)         List of candidates who are registered with them is forwarded by the company after verifying their educational certificates, ID Proofs and character antecedents etc. based on the educational and other requirements provide by the department.

4)         Thereafter a typing test of these candidates is conducted in the Computer Lab of this department wherein typing speed of 30 wpm has been set as criteria for selection of eligible candidates.  They are deployed in this department according to Merit list.  The current duration of the contact is 1.2.19 to 30.11.19.”

4.       During the hearing on 01.03.2019, the representatives of the Department clarified that 131 posts of Lower Division Clerk (LDC) are vacant in the Department.  The recruitment to the post of LDC is made by the Services Department through DSSSB.  Due to unavailability of LDCs and with the approval of Services Department, DEOs are being appointed on outsourced basis.  As the Department does not directly recruit reservation is not being provided.  They also clarified that DEOs’ appointments are initially for 10 months which may be extended.  The agency through which the DEOs are recruited, may change.

5.       From the submissions of the respondent Department, it is seen that the appointments of DEOs through outsourced agency are being made against the vacancies in the sanctioned posts.  Had these posts been filled through DSSSB, reservation for persons with benchmark disabilities would have been made.  Merely because the nature of appointment and the agency through which the candidates are recruited, are different from the usual ones, persons with benchmark disabilities cannot be denied their right to reservation as provided under Section 34 of the Act which 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.

(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.”

6.       Ministry of Home Affair’s O.M. No. 27/4/67(II)-Estt.(SCT) dated 24.09.1968 which is reproduced below also provides that reservation for Scheduled Castes and Scheduled Tribes should be made in all temporary appointments except appointments which are to last for less than 45 days:

“Ministry of Home Affairs O.M. No.27/4/67(II)-Estt.(SCT),

dated the 24th September, 1968, to all Ministries/Departments, etc.

Subject:-Recommendation No. 18 of the Working Group to study the progress of measures for land allotment to Scheduled Castes and their representation in services-Reservation in temporary appointments.

The Working Group under the Chairmanship of Shri M.R. Yardi, Additional Secretary, Ministry of Home Affairs to study the progress of measures for land allotment to Scheduled Castes and their representation in services has inter-alia made the following recommendation:-

Recommendation No. 18

“Rules of reservations should also be extended to purely temporary posts.  This would give an opportunity to Scheduled Castes applicants appointed against short term vacancies to gain experience which will facilitate their absorption later in regular vacancies.”

2.         Accordingly to existing orders, reservations are made for Scheduled Castes and Scheduled Tribes in all temporary appointments except those which are to last for less than 3 months.  The recommendation of the Working Group has been considered and it has been decided that the aforesaid reservation orders should in future apply to all temporary appointments which are to last 45 days or more.  Accordingly, with effect from the date of issue of this O.M., reservation for Scheduled Castes and Scheduled Tribes should be made in all temporary appointments except appointments which are to last for less than 45 days.

3.         Ministry of Finance etc. are requested to bring these instructions to the notice of all authorities under them.

4.         This issues with the concurrence of the Comptroller and Auditor General of India in so far as persons serving under him are concerned.”

7.       A plain reading of Section 34 of the Act indicates that reservation for persons with benchmark disabilities is not linked to long term, short term or regular appointment.  The only condition is that the provision of the said reservation would not be applicable to appointments made by promotion. The manner and the agency through which such appointments are made to fill the vacancies in the posts are not relevant.

8.       One of the objectives of making a provision for reservation for persons with benchmark disabilities is to economically empower them and to ensure that they lead a life of dignity on equal basis with others.  It is implicit in the provision under Section 34 of the Act that they get their share in the employment opportunities/appointments that are available to other members of public. Therefore, irrespective of whether the appointments are made on long term, short term, regular or by whatever nomenclature these are referred to, the quota that has been earmarked for persons with benchmark disabilities in the statute, must be provided to them.  Therefore, every Govt. establishment is mandated under Section 34 of the Act to reserve not less than 4% vacancies for persons with benchmark disabilities against the appointments made by them in the posts in that establishment.  For the purpose of computing the reserved vacancies for persons with benchmark disabilities, a running roster as prescribed by DoPT in their OM no. No. 36035/02/2017-Estt. (Res) dated 15.01.1998, should be used. 

9.       In view of the above, the respondent should place the demand accordingly with the recruiting agency/ supplier of DEOs and ensure that the prescribed percentage of vacancies are reserved and filled up by persons with benchmark disabilities as mandated in Section 34 of the Act.

10.     As appointments on short term basis/on contract/outsourced basis are being made in various Departments against the sanctioned posts, a copy of this order is being marked to Secretary, Services Department, Govt. of NCT of Delhi with the request to issue appropriate instructions to all the concerned for reservation of vacancies for persons with benchmark disabilities against all the appointments made in the sanctioned posts for a period of 45 days or more.

11.     Action taken report on the above mentioned recommendations be submitted to this Court within three months from the date of receipt of this order as required under Section 81 of the Act.

12.     The complaint is disposed off.

13.     Given under my hand and the seal of the Court this 06^th day of March, 2019.     

           (T.D. Dhariyal)

State Commissioner for Persons with Disabilities

Copy to :

Secretary, Services Department, Govt. of NCT of Delhi, 7th Level, B-Wing, Delhi Secretariat, I. P. Estate, New Delhi-110002 (email: secservices@nic.in) for information and necessary action on para 10 of the order.