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
[Vested with powers of Civil Court under the
Rights of Persons with Disabilities Act,
2016]
Case No. 4/1260/2015-Wel/CD/ 579-580 Dated:
26.05.2017
In
the matter of:
Sh Surya Narayan,
Code No. 300971,
Moti Bagh, Horticulture Department,
New Delhi-110021. .……… Complainant
Versus
The Chairman,
New Delhi Municipal Council,
Palika Kendra, Parliament Street,
New Delhi-110001.
.………
Respondent
Date of hearing:
15.05.2017
Present: Surya
Narayan, Complainant
Sh.
Sharad Kumar, Joint Director & S.K. Sharma, Sr. Asstt.
A&H,
Deptt. of NDMC on behalf of Respondent.
ORDER
The above named complainant, a person with 60%
locomotor disability in left upper limb and left lower limb, vide his complaint
received on 03.05.2016 submitted that he has been working as Mali in New Delhi
Municipal Council (NDMC) for the last 27
years. In the year 2011, a list of 109 successful candidates who qualified the
written examination and the Interview-cum-Trade Test for the post of Choudhary
was issued. He was at Sl. No. 84. As per him, 36 Malis have been promoted as
Head Malis and as he is the only Mali
with disability, he should be promoted. The
complaint was taken up with the respondent vide communication dated 17.05.2016.
2. Separately, the respondent vide
letter No. SO(A&H)/710/SA-II dated 02.05.2016 submitted that the NDMC had invited
applications to fill up 22 backlog vacancies of Mali under disabled quota i.e.
10 nos. for VH, 10 nos. for HH and 02 nos. for OH (One leg). Some of the applicants had submitted the
disability certificates against two posts identified for OH(One Leg). The respondent sought a clarification whether
the applicants who were not covered under OH (One Leg) category could be considered for
the post of Mali. The Office of Commissioner for Persons with Disabilities informed
the respondent that NDMC should follow the guidelines as per identified posts.
3. After exchange of a number of
correspondence and hearings, the respondent vide letter dated 09.03.2017
submitted as under:
“The post of “Choudhary” in NDMC is equivalent to the post of “Head
Mali” at serial no. 51 of annexure-C of
the above instructions and same is to be filled up in P.H. quota in OH category
which is identified for a persons with one leg (OL) affected whereas Sh. Surya
Narayan, the complainant herein suffers from Post Encephalitic left sided
hemi-paresis.
In other words, while the post
is identified only for a person with one leg affected, the disability of Sh.
Surya Narayan is such that the entire left part of the body i.e. lower as well as upper limb is affected.
A clarification in this regard
was sought from the office of CCPD through this Office letter dated 09.06.2016
in this case which was replied to by the office of CCPD through its letter
dated 12.08.2016 stating that the department should follow guidelines as per
identified post.
In order dated 10.02.2017 of
the Office of CCPD as mentioned above, the above issue which was brought to the
notice through the oral submissions has not been addressed. It may be appreciated that if Sh. Surya
Narayan is to be given promotion, in the first instance, a decision will have
to be taken by the competent authority to relax the eligibility criteria for
the post of Choudhary, which being a policy decision affecting the rules of
recruitment would come under the domain of the executive. It may also be appreciated that for
considering any such proposal the competent authority would require to know the
reasoning on the basis of which the office of CCPD has reached to the
conclusion that the post of Choudhary may be filled up by recruiting a person
whose both limbs are affected whereas the instructions provided otherwise.
Further it is noted that the
office of the CCPD in its order dated 10.02.2017 has directed to give promotion
to Sh. Surya Narayan from the due date, a term which may lead to different
interpretations. It is stated that till
date the prescribed norms render Sh. Surya Narayan as ineligible for the post
of Choudhary. Even if it is presumed
that taking into account the reasoning to be given by the Office of CCPD, the
competent authority decides to relax/revise the norms, legally such decision
will be effective from a prospective date only.
It is also to be stated that
since the post of Malis and Choudharies occur in various departments of Central
Governments and Local Self Governments, such a decision will have wider
ramifications.
In view of above, the Office
of CCPD is requested to have a re-look on the issue and pass a Speaking Order.”
4. Upon considering the above
contention, it was decided to hold a hearing on 15.05.2017. During the hearing, the representatives of
the respondent reiterated their written submissions and added that the duties
of the Choudhary are slightly different from that of Mali. The area of work of Choudhary is much wider
than a Mali who is required to work at a particular location. Furthermore,
the post of Choudhary is not identified for persons with disabilities in
one leg as well as in the arm.
5. I do observe that the issue
deserved to be examined in the Office of Commissioner for Persons with
Disabilities in more depth and in accordance with the relevant provisions of the
Persons with Disabilities Act, 1995, the relevant notification and instructions
of the appropriate Government before conveying its views. I have perused the record and the relevant
provisions of the legislation and the Government’s instructions on the subject
which are mentioned in the succeeding paragraphs.
6. As per DoP&T’s instructions
contained in OM No. 36035/3/2004/Estt/Res dated 29th December, 2005 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 percent each shall be reserved for persons suffering
from (i) blindness and low vision, (ii) hearing impairment and (iii) locomotor
disability or cerebral palsy in the post identified for each disability. The representative of the respondent
clarified during the hearing that the post of Choudhary is to be filled 100% by
promotion.
7. Para
3 of the above mentioned OM provides that reservation for persons with
disabilities shall be computed on the basis of total number of vacancies
occurring in all Group C & D posts as the case may be. Para 15 of the said OM provides for
earmarking points 1, 34 & 67 of the roster in each cycle of 100 points for
persons with disabilities. Govt. of
India introduced reservation for persons with disabilities in the posts filled
by promotion vide O.M.No. 36035/08/89-Estt(Sect) dated 20th November, 1989. Therefore, the respondent was required to
reserve vacancies for persons with disabilities in Group C posts, to which the
post of Choudhary belongs, from November, 1989.
8. The
posts suitable for persons with disabilities were identified by DoP&T in
1986. Thereafter, the Ministry of Social
Justice and Empowerment, Govt. of India have reviewed the list and the latest
one was issued vide notification dated 29th July, 2013. Note 2, 3 & 4 of the said notification
read as under:
“Note
2: The list of posts being notified is not an exhaustive list. The Ministries,
Departments, Public Sector Undertakings and the autonomous bodies may further
supplement the list.
Note
3: If a post is already held by a person with disability, it shall be deemed to
have been identified.
Note
4: If a post is identified in the feeder grade, the post in the promotional
grade should also stand identified”.
9. As per the list of identified posts issued vide the said
notification, Head Mali appearing at Sl.No. 51 of the list, is identified for
OL, HH, LV, B. Physical requirement for
the post are - ST= Standing, W= working, MF= manipulation by fingers, PP=
pulling and pushing, L=lifting, BL=bending. The work conditions are – work
performed mostly outside. Incumbent
should be functionally able to complete the assignment task efficiently with
aids and appliances whenever necessary.
10. Admittedly, the complainant
qualified the written examination and interview- cum-trade test in the year
2011. The complainant has been working
as Mali for more than 27 years. Therefore,
the post of Mali shall deem to have been identified for persons with
disabilities in lower limb and in the upper limb. The duties of Choudhary are
stated to be different from that of a Mali,
to the extent that a Choudhary would have to move around for supervising
the work of other Malis. The additional disability is in his upper left arm,
which would not in any way affect his
efficiency to perform his work. As the post of Choudhary is a feeder grade for
Mali, the former should also stand identified for the person with disability in
lower limb and in the upper limb in accordance with Note 4 of Ministry of
Social Justice and Empowerment’s notification dated 29th July, 2013.
Therefore, the complainant should have been considered for promotion to
the post of Choudhary, if his statement that he is the only Mali with
disability is true.
11. In the light of the above mentioned
position and if the statement of the complainant that 36 malis out of the list
of 109 have already been promoted and he is the only Mali with disability is
true, in my opinion, a grave injustice has been done to the complainant by not
promoting him to the post of Choudhary alongwith the first batch of Malis. Any delay in his promotion now would amount
to perpetuation of injustice. I
therefore, recommend that Sh. Surya Narayan be promoted to the post of
Choudhary from the date he should have been promoted in accordance with the above
mentioned instructions of DoP&T and the Notification of Ministry of Social
Justice and Empowerment within one month from the date of receipt of this order
with all consequential benefits as per rules and inform this Court of the
action taken within three months from the date of receipt of this order.
The matter is disposed of
accordingly.
Given
under my hand and the seal of the Court this 26th day of May,2017.
This order be also sent by email
to the respondent at sks741965@gmail.com.
(T.D. Dhariyal )
State
Commissioner for Persons with Disabilities
