In
the Court of Commissioner for Persons with Disabilities
National Capital
Territory of Delhi
25- D, Mata Sundari Road, Near Guru Nanak Eye
Centre, New Delhi-2
Phone-011-23216002-04, Telefax: 011-23216005,
[Vested with powers of Civil Court under
the
Rights of Persons with Disabilities Act, 2016]
Case No.323/1082/2018/06/11022-24 Dated: 09.10.2018
In the matter of:
Ms.
Meenakshi Arora,
Flat No. BE-102, Ground Floor,
Street No. 2, Near Vikas General Store,
Hari Nagar, New Delhi-110064. …… Complainant
Versus
The
Director,
Directorate of Education,
Old Sectt. Bldg., Civil Lines,
Delhi-110054. ........Respondent No.1
The Chairman
Delhi Subordinate Service Selection Board,
FC-18, Institutional Area, Karkardooma
Delhi-110092. ........Respondent No.2
Date of
hearing: 28.09.2018
Present: Ms. Meenakshi Arora, Complainant on telephone.
Sh. Ajay Kumar, Sr. Assistant on behalf of respondent
No. 1.
ORDER
The above named complainant, a person with 90%
locomotor disability (wheel chair user), vide her complaint dated 24.01.2018
submitted that she is working in Jawahar Navodya Vidayala School, Ministry of
HRD, Govt. of India as a Librarian since
February, 2002 and is posted at Jafar Pur Kalan, Delhi. The Navodya Vidayala job has all India
transfer liability. She, therefore
appeared in the examination conducted by DSSSB in 2016 for the post of
Librarian in Directorate of Education, Govt. of NCT of Delhi.
2.
The complainant further submitted
that she was selected for the post but was not in a position to join due to
some official and personal reasons as the condition of her 70 year old mother,
who is suffering from Blood Cancer, was critical. She was given an extension for joining till
06.02.2017. Even at that time, her
mother was under treatment at AIIMS and she could not join. In July 2017, she informed that she wanted to
join and the concerned officer told her that her request for further extension
of 10-15 days would be accepted and she was verbally advised to resign from her
post in Navodya Vidayala. However,
before she could resign, she was informed on telephone that her Dossier was
being sent to DSSSB. In reply to her RTI
application, she was informed that her file had not been sent to DSSSB. She had not got any reply to her last
application dated 27.07.2017. The
complainant has also submitted that she needs the support of her brother as she
cannot live alone in the campus of Navodya Vidayala through out her life due to
her physical condition. It is, therefore
critical for her to join a Delhi Govt. School close to her family residence. She has, therefore requested that the Authorities
should understand her problem and allow her to join the post of Librarian.
3. Her complaint was taken up with the
Directorate of Education vide notice dated 25.01.018. Directorate of Education vide reply dated
09.04.2018 submitted as under :
1) As per appointment consolidate
order No. F.No. 2/DRC/E-IV/DE/Lib./2016/1339-50 dated 02/09/2016 (posting ID
20160025) as well as individual order No. 2/DRC/E-IV/DE/Lib./2016/1339-50 dated
06/09/2016 Ms. Meenakshi Arora (Empl. ID -20160888) was appointed as Librarian
and posted in Hari Nagar, Block-L S(Co-ed)- 1514022 with the direction to
report to her place of posting latest by 10/10/2016 failing which her
appointment shall stand cancelled without any further communication (copy
enclosed).
2) As per her request dated 04/10/2016
and 01/11/2016, extension was granted for joining up to 13/01/2017 vide order
dated 07/11/2016, as per Govt. of India, Ministry of Personnel, Public
Grievances & Pensions (Department of Personnel & Training OM No.
9/23/71-Estt. (D) dated 6th June, 1978 and OM No. 35016/2/93-Estt.
(D) dated 9th Aug. 1995 (Copies of GM's are enclosed).
3) Ms. Meenakshi Arora again
requested for some more time extension vide diary No. 81/E-1V dated 11/01/2017
competent authority vide memorandum dated 24/01/2017 has grant a last
opportunity to Ms. Meenakshi Arora to
join her place of posting by 06/02/2017 and it was informed to her that failing
which her appointment will automatically be treated as cancelled and no further
correspondence will be entertained.
4) Further Ms. Meenakshi Arora
has requested for some more time vide application dated 02/02/2017. However as
per As per Govt. of India, Ministry of Personnel, Public Grievances &
Pensions (Department of Personnel & Training) OM No 9/23/71-Estt. (D) dated
6th June, 1978 and OM No. 35016/2/93-Estt. (D) dated 9th Aug. 1995 extension can not be granted beyond
six months. The OM is reiterated as under :
"The matter has been
examined in consultation with the UPSC and it has been decided to reduce from
nine months to six months the maximum time upto which an offer of appointment
can be kept to open. In other words an offer of appointment should be clearly
specify the period (which shall not normally exceed one or two months) after
which the offer would lapse automatically if the candidate did not join within the specified period. If however within
the specified period, a request is received from the candidate for extension of
time, it may be considered by the Ministries/Deptts. and it may be granted only
as an exception where facts and circumstances so warrant and in any case only
upto a maximum of six months from the date of issue of the original offer of a
appointment. An offer of appointment would lapse automatically after the expiry
of six month from the date of issue of original offer of appointment".
Therefore request of Ms.
Meenakshi Arora vide dated 02/02/2017 was considered & rejected by the
Competent Authority and she was intimated vide memorandum No. DE. 02/DRC/E-IV/Extension
(Lib.)/2016/2458 dated 07/07/2017 and her appointment orders dated 02/09/2016
and 06/09/2016 were cancelled (copy enclosed).
5) It is further mentioned that
in response of request of Ms. Meenakshi Arora dated 29/01/2018, her case has
been examined sympathetically by the Competent Authority and DSSSB has been
requested to provide their views in this matter vide letter No. DE.
02/DRC/E-IV/Ext. (Lib.)/2016/2143 dated 14/03/2018 as per DOPT OM dated 6th
June, 1978 point No. iv (Copy enclosed).
This is for your information
please.
Yours
faithfully,
Encl.
As above.
(R.S.
Krishnan)
Assistant
Director (E-IV)”
4. Directorate of Education vide letter
dated 25.05.2018 and 15.06.2018 requested DSSSB to expedite their views and DSSSB
were impleaded as respondent no. 2 on 28.06.2018 and a hearing was scheduled on
04.09.2018. Vide letter dated 25.07.2018,
Directorate of Education informed that views of DSSSB had been received vide its
letter dated 21.06.2018 and as per their advice, clarification/expert advice of
Services Department, Govt. of NCT of Delhi has been sought vide their letter
dated 23.07.2018. Further action would
be taken after receiving the clarification/expert advice. As per the letter dated 21.06.2018 of DSSSB,
final acceptance/rejection of a candidate is the prerogative of the appointing
authority. As such, decision may be
taken on the basis of Court Order(s) vide WP (C) 267/2013, CM APPL.555/2013,
CAT Order vide OA No. 611/2014 & DoPT OM dated 09.08.2017 & 06.06.1978 and
opinion of Service Department and Law Department may be taken, if required. Inviting reference to MHA’s OM No 9/23/71-Estt.
(D) dated 6th June, 1978, DoPT vide their OM No. 35016/2/93-Estt. (D) dated
9th Aug. 1995 has conveyed that the said
instructions provide that the offer of appointment could lapse if the candidate
could not join within a specified period and lapse automatically after the
expiry of 6 months from the date of issue of original offer of
appointment. DoPT has advised all the
Ministries and Departments to ensure strict compliance of the said
instructions.
5. During the hearing on 04.09.2018, the complainant
reiterated her written submissions and added that she could
not resign from the post in Navodaya Vidyalaya without handing over the charge
of the library, which has approximately 100000 books in addition to text
books. She was also under the impression
that the extension would be granted upto nine months as indicated in DOE’s
letter.
6. The representative of the Directorate of
Education submitted that nine months extension was permissible as per the MHA”s
OM No. 9/23/71-Estt(D) dated 06.06.1978 which was reduced to 6 month in 1995.
7. It was observed that a large number of
posts of Librarian in the Directorate of Education and the post in the School
where the complainant was posted were still vacant. Therefore, revival of appointment in respect of
the complainant might also serve the purpose of the Department. As DSSSB has advised Directorate of Education
to take final decision in consultation with Services Department, it was recommended
that Secretary (Services) may give a personal hearing to the complainant and
convey the opinion of Services Department to Directorate of Education at the
earliest and the matter to scheduled for hearing on 2.09.2018.
8. The complainant, who deposed on telephone
on 28.09.2018, informed that she was given a personal hearing by Secretary (Services)
who assured her to do the needful. She
also vide email dated 01.10.2018 submitted that in one of the orders cited,
DSSSB’s letter does not relate to her case as that case was not the service
matter. In other matter of Ajay Kumar
Vs. Union of India W.P.(C) No. 267/2013, the Hon’ble High Court of Delhi
dismissed his petition as the Hon’ble Court did not find any element of public
interest and was not an exceptional case.
She also submitted that OA no. 1786/2011 before the Central
Administrative Tribunal pertains to fixation of seniority and the applicant’s
appointment in that case was revived and he was permitted to join beyond the
extended time. He got extension up to
22.02.2006 and finally he joined duty on 28.11.2006. As per the complainant, her case is
exceptional on the following grounds:
(i) Genuineness
of her case is proved by the fact that she has decided to leave the job of Librarian
with higher Grade Pay of There are 9000 vacant teaching posts and the Hon’ble
High Court of Delhi has directed DSSSB to fill those posts.
(ii) The
post of the Librarian in that school where the complainant was posted, is still
vacant. Therefore her appointment as Librarian in that school will benefit it.
(iii) Selection
of a candidate involves lot of time and expenditure. Revival of her appointment will save time and
money and benefit the school as she is well qualified for the post and also
having teaching experience of about 16 years.
(iv) No
training after appointment is involved in her case as in the case of the
petitioner in W.P. (C) No. 267/2013.
(v) She
is a person with 90% locomotor disability and wheel chair user and therefore
her case is exceptional one.
(vi) `4800 to join the post of Librarian
in Govt. of NCT of Delhi with lower Grade Pay of `4600 after 16 years of service
in Navodya Vidayalya.
9. Chronology of events of selection process
in respect of the complainant as Librarian in Directorate of Education is as
under:
(i)
The complainant was offered
the post of Librarian by the Department of Education on 14.04.2016.
(ii)
The appointment letter for her
selection in Hari Nagar Block-L (Co-Ed) School
was issued on 02.09.2016 and she was asked to join on or before
10.10.2016.
(iii)
The complainant requested for
extension of upto 13.01.2017 on the ground that her mother was suffering from
blood cancer and kidney ailment and was under treatment, which was granted.
(iv)
She asked for further
extension upto April 2017, but extension was given upto 06.02.2017. She was also informed that the maximum
permissible period of extension of nine months had expired on 11.01.2017. She
was however, given one more opportunity to join by 06.02.2017.
(v)
Finally the offer of
appointment was cancelled on 07.07.2017.
10. It is observed that it is a case of revival
of the offer of appointment which has lapsed.
Under para (iv) of MHA OM no. 9/23/71-Estt.(D) dated 06.06.1978, if the
Appointing Authority finds the circumstances exceptional and on ground of
public interest, revival of the offer of appointment is to be done after
consulting DSSSB in this case and the seniority of the complainant would be
fixed in accordance with sub para (v) of the said OM. The reason for reducing nine month period to
six months month for the direct recruits to join, was that a longer period
delayed preparation and issue of select/seniority lists, which affects the
interests of the existing appointees as also determination of the vacancies for
recruitment/ promotion as has been explained in the order dated 16.01.2013 of
Hon’ble High Court of Delhi in W.P. (C) 267/2013, CM APPL.555/2013.
11. The Appointing Authority in this case, therefore
needs to be convinced whether circumstances of the complainant were exceptional
due to which she could not join within the specified period of six months/nine
months and whether revival of offer of appointment would serve public interest
and not adversely affect the interest of any existing Librarian. This essentially needs to be decided by the Appointing
Authority and in my view no expert opinion is required as DoPT’s instructions do
envisage revival of a lapsed offer of appointment in exceptional circumstances
and on ground of public interest. The complainant in her email dated 01.10.2018
has fairly brought out the distinction between her case and the other two cases
that have been cited and therefore there is no need to repeat the same. In my view, her circumstances were
exceptional as her mother was suffering from a terminal illness (Blood Cancer). Her physical condition due to her disability
has forced her to take a decision to move from a higher post for 14 years (in
2016) to a lower post. As a large number
of teaching posts including the post of Librarian in the school where she was
originally posted, are stated to be vacant, revival of her offer of appointment
would serve the interest of the Department and hence public interest. Revival of offer of the appointment of the
complainant would also not affect the interest of any existing employee as the
posts of Librarian are to be filled by direct recruitment. The complainant is aware and clear about the
fact that if her offer of appointment is revived, her seniority would be fixed
in accordance with para 5 of MHA’s OM dated 06.06.1978.
12. In light of the above, it is recommended that
Directorate of Education may take a positive view in the matter at the earliest,
in any case within 3 months from the date of receipt of this order and intimate
this Court and the complainant as required under Section 81 of the Act.
13. The complaint is disposed off accordingly.
14.
Given under my hand and the seal of
the Court this 08th day of October, 2018.
(T.D. Dhariyal)
State
Commissioner for Persons with Disabilities
Visit the signed PDF File of the Order here:
