Showing posts with label Promotion against reserved vacancy. Show all posts
Showing posts with label Promotion against reserved vacancy. Show all posts

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

Tuesday, January 23, 2018

Ajay Kumar Vs. North Municipal Corporation | Case No. 4(682)/2014-Wel/CD/3933-34 | Dated: 22.01.2018




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(682)/2014-Wel/CD/3933-34                  Dated: 22.01.2018

In the matter of:

Sh. Ajay Kumar,
S/o Sh. Dharam Pal Singh
Aashirwad Apartment,
A-31, Plot No. 11, Sector-12,Dwarka,
New Delhi-110078.                                                .……… Complainant     

                                                                     Versus
The Commissioner,
North Delhi Municipal Commissioner,
4th Floor, Dr. S.P.M. Civic Center,
New Delhi-110002.                                                     …...…Respondent

        
ORDER

              The above named complainant, a person with 40% locomotor disability vide his complaint dated 13.06.2014 received from the Court of Chief Commissioner for Persons with Disabilities vide letter dated 08.07.2014 alleged denial of promotion from the post of Section Officer (Horticulture)  to the post of Assistant Director (Hort.), a Group B post against a reserved vacancy for persons with disabilities.  

2.           The matter was taken up with the respondent vide communication dated 01.08.2014.  After a number of correspondence and hearings, the respondent informed that in light of the DoP&T’s OM No. 36035/3/2004-Estt.(Res.) dated 29.12.2005, the complainant was not covered for promotion under the quota reserved for persons with disabilities. DoP&T to whom a reference was made, also informed that the matter of reservation for persons with disabilities in case of promotion from Group-C to Group-B or within Group-B was under examination in consultation with the Department of Legal Affairs, Ministry of Law & Justice vide their letter dated 09.01.2015. The respondent vide letter dated 05.02.2015 also informed that a speaking order will be passed on receiving a reply from the DoP&T. 

3.           The complainant was directed to submit his comments, if any within 15 days on the response of the respondent vide letter dated 06.12.2017 failing which it would be presumed that he had nothing to say in the matter and the case would  be treated as closed and disposed off. So far,  no comments from the complainant have been received.

4.           In view of the above and the fact that as per DoP&T’s instructions as on date, there is no reservation for persons with disabilities in promotion to Group-B and Group-A posts, the complaint is closed and disposed of accordingly.

5.           Given under my hand and the seal of the Court this 22th day of January, 2018.

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



Wednesday, January 3, 2018

Ashwani Gupta Vs. Dte of Social Welfare | Case No. 4/1268/2016-Wel/CD/3696-98 | Dated: 02.01.2018



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. 4/1268/2016-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.