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
[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
